On September 25, 2008, President Bush signed into law the ADA Amendments Act of 2008 (“ADAAA”). Passed by wide majorities in Congress, the ADAAA expresses both Congress’s intent that the Americans with Disabilities Act of 1990 (“ADA”) was designed to “‘provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities’ and provide broad coverage,” and its opinion that federal courts had not interpreted the ADA in a way that supported this intent. The ADAAA will become effective on January 1, 2009. As a result, employers have only a few months to learn about the ADAAA and the impact that it will have on their organizations.

Under the ADA, the term “disability” means—

  • A physical or mental impairment that substantially limits one or more major life activities of an individual;
  • A record of such an impairment; or
  • Being “regarded as” having such an impairment.

Although the ADAAA retains this definition of the term “disability,” the amendments include other substantial changes related to the determination of whether an individual has a “disability.” Among the changes are amendments to the definition for the term “major life activities,” substantial rules of construction regarding the definition of disability, and changes related to the “regarded as” provisions.

As a result of the ADAAA, the ADA will contain a non-exhaustive list of “major life activities,” which include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, working, and the operation of major bodily functions. Although some of these major life activities were already listed in the federal regulations that interpreted the ADA, the major life activities of eating, sleeping, standing, lifting, bending, reading, concentrating, thinking, communications, and the operation of major bodily functions were not previously included in the regulations.

The ADAAA rules of construction mandate that the definition of disability shall be construed broadly and to the maximum extent of the ADA’s purpose. In accordance with these rules of construction, the ADAAA requires that the term “substantially limits” be interpreted consistently with the findings and purposes of the ADAAA. For example, the Congressional findings state that the federal regulation that defines the term “substantially limits” as “significantly restricted” is too high a standard. The rules of construction also explain that an impairment that is episodic or in remission (i.e. cancer, diabetes, epilepsy, etc.) is a disability if it would substantially limit a major life activity when active.

In another rule of construction, the amendments state that the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as medication, prosthetics, hearing aids, assistive technology, auxiliary aids, or learned behavioral or adaptive neurological modifications. This is a significant change, because prior to the amendments, the United States Supreme Court found that the ADA did not consider an individual to be “disabled” when the individual was able to ameliorate his or her condition with medication or other assistance. Cutting somewhat against the broad sweep of this change, however, is the ADAAA’s exception to this rule. The amendments allow the ameliorative effects of ordinary eyeglasses or contact lenses to be considered when determining whether an impairment substantially limits a major life activity.

Further, the ADAAA provides that an individual can meet the requirement of being “regarded as” disabled regardless of whether an actual or perceived impairment limits or is perceived to limit a major life activity. However, the ADAAA also clarifies that employers will not be required to provide a reasonable accommodation to an employee that is “regarded as” disabled but does not have an actual disability under the ADA.

Conventional wisdom suggests that the ADAAA will allow an employee to more easily establish that he or she has a disability under the ADA. As a result, employers may experience more accommodation requests from employees. Further, many ADA lawsuits filed by employees will have one less hurdle to overcome since it will theoretically be easier for employees to establish that they have a disability. As a result, more ADA lawsuits may turn on whether the employer complied with its obligations under the ADA rather than whether the employee has a disability. The ADAAA therefore makes it possible for more ADA lawsuits to advance beyond the summary judgment stage and proceed to trial, which will result in higher expenses in defending such lawsuits.