On September 25, 2008, the President signed the Americans with Disabilities Amendments Act of 2008 (ADAA) into law.  The new law goes into effect January 1, 2009 and is intended to reinstate a broad scope of protection available under the Americans with Disabilities Act (ADA).  The purpose of the new Act is to overrule Supreme Court decisions and EEOC regulations which limited the definition of a qualified disability by mandating broader coverage for individuals. 

Although the definition of a disability remains unchanged, the new law redefines certain key terms such as “substantially limits” and “major life activity” while making clear that the definition is to be construed broadly to the “maximum extent permitted” under the ADA.  Under the new Act, courts can no longer consider the ameliorative effects of mitigating measures (except for eyeglasses or contacts) to determine whether an impairment substantially limits a major life activity.  The Act also expands the definition of major life activity to include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, breaking, breathing, learning, reading, concentrating, thinking, communicating and working, as well as the operation of major bodily functions such as immune, respiratory and neurological systems.

The definition of “regarded as” having a disability has also been expanded to include a broader category of employees.  Under the new law, an employee need only show that an adverse employment action occurred because the employer believed the employee had a mental or physical impairment.  Further, an impairment that is episodic or in remission will be considered as a disability if it would substantially limit a major life activity when active. 

Employers Should Be Proactive

For employers, this means that more employees will be considered disabled and entitled to protection under the Act, and more employees will be entitled to a reasonable accommodation to perform essential job functions.  In many cases, what constitutes a covered disability may not be readily apparent.  Although Congress authorized the EEOC to issue binding regulations and interpretive guidance, which employers can expect in 2009, employers should begin taking proactive steps today to comply with the broad mandate.  Employers should review and revise policies related to the ADA, discrimination and complaint procedures, establish procedures for responding to requests for reasonable accommodations, revise medical certification forms, review job descriptions to ensure that essential job functions are clearly defined, train supervisors and managers on the new law and handling requests for accommodations and consider ADA training for all employees. 

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