The ADA Amendments Act of 2008 (“ADAAA”) will become effective on January 1, 2009. The ADAAA expresses both Congress’s intent that the Americans with Disabilities Act of 1990 (“ADA”) was designed to provide a “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 broadly enough. As a result, insurance companies have had little time to learn about the ADAAA and its significant impact.

The ADAAA made substantial changes related to the determination of whether an individual has a “disability,” including changes to the definition of “major life activities,” to the rules of construction regarding the definition of “disability” and to the “regarded as” disabled provisions.

The ADAAA added to the list of “major life activities” used to determine if an impairment is a disability, including: eating, sleeping, standing, lifting, bending, reading, concentrating, thinking, communications and the operation of major bodily functions, which 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. 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, epilepsy, etc.) is a disability if it would substantially limit a major life activity when active.

Also, the new determination of whether an impairment substantially limits a major life activity is made without regard to effective mitigating measures such as medication, prosthetics or hearing aids. However, ordinary eyeglasses and contact lenses can still be considered in that determination.

The ADAAA further 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.

The ADAAA will allow an employee to more easily establish an ADA disability. As a result, insurance companies should experience more accommodation requests from employees. More ADA lawsuits will turn on whether the insurance company complied with its obligations to engage in the interactive process or provide a reasonable accommodation rather than whether the employee has a disability. This will, most likely, result in more trials and higher litigation expenses.