On Sept. 11, 2008, the United States Senate, in legislation co-sponsored by Sens. Obama and McCain, voted unanimously to expand the protections afforded by the Americans with Disabilities Act (“ADA”) by passing the ADA Amendments Act of 2008 (“ADAAA”). A similar version of the law earlier passed in the House of Representatives by an overwhelming majority. Within a matter of weeks, the House is expected to approve the Senate version and send it to the President for signature. All signals from the White House are that the President will sign the ADAAA into law, and that it will take effect Jan. 1, 2009.

The ADA prohibits discrimination against a qualified individual with a “disability,” defined as a physical or mental impairment that substantially limits one or more of the individual’s major life activities. The ADAAA is designed to reverse several rulings by the U.S. Supreme Court that the law describes as having improperly restricted ADA coverage by narrowly interpreting the term “disability.” In one such case, the Court held that when deciding whether an individual is protected by the ADA, courts need to take into account mitigating measures that might ameliorate the effects of the condition, such as medication or other treatment. In other cases, the Court strictly enforced the requirement that an impairment substantially limit a “major life activity” to be a covered disability, and narrowly construed what sort of activities would be considered “major life activities” for purposes of the Act.

The ADAAA explicitly rejects these decisions, directing courts to construe the term “disability” in favor of “broad coverage … to the maximum extent permitted by the terms of this Act.” Under the new law, the ameliorative effects of mitigating measures (such as medication, medical equipment, prosthetics, hearing aids, assistive technology, or reasonable accommodations) cannot be taken into account in deciding if an individual has a disability, except for ordinary eyeglasses or contact lenses. The ADAAA would also require the EEOC to issue new regulations interpreting when a condition can be said to “substantially limit” an individual, with the clear direction that those regulations should be more expansive than the Supreme Court’s decisions. In writing those rules, the EEOC is expected to borrow heavily from the House’s version of the ADAAA, which says that an individual’s condition “substantially limits” him or her in a major life activity if it “materially restricts” the individual, meaning that it need not rise to the level of a “severe” or “significant” restriction, but must be more serious than a “moderate” impairment. Congress thus made clear that it wants to lower the bar set by the Supreme Court for what sort of limitation is required to be protected by the ADA, and thereby broaden the group of individuals who come within the ADA’s scope.

The ADAAA would also reverse the Supreme Court’s relatively narrow view of what constitutes a “major life activity.” The new law redefines the term by setting forth a broad, illustrative, and non-exhaustive list of activities that fall within its scope, including caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. The ADAAA also specifies that “the operation of a major bodily function,” such as functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, or reproductive functions, will also be considered major life activities under the ADA. Thus, anyone with a condition that substantially limits even one of these major life activities will be protected by the ADA. Further broadening the coverage of the Act, the ADAAA also makes clear that impairments that are episodic or in remission are still protected disabilities if, when active, they would substantially limit a major life activity.

The ADAAA will significantly expand the number of persons protected from discrimination under federal law. Employers operating in states that already have more restrictive laws, such as New York, New Jersey and California, may not experience much of a change. But for employers in other states, the ADAAA’s expansion of who is protected by the ADA will have a significant impact, requiring employers to consider the need for reasonable accommodations of a significantly greater number of applicants and employees. All employers should thus review this new legislation and be prepared for it to take effect Jan. 1, 2009.