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Congress and President Bush Sign Amendments Rehabilitating the Americans with Disabilities Act

On September 25, 2008, President Bush signed into law the ADA Amendments Act of 2008 (“ADAAA”). This legislation, which takes effect January 1, 2009, will expand the definition of disability and add standards for determining whether an impairment substantially limits an individual’s major life activities. The ADAAA explicitly overrules several Supreme Court decisions that made it more difficult for employees to gain protected status under the Americans with Disabilities Act (“ADA”).

The ADAAA preserves the basic framework of who is considered “disabled” and therefore protected under the ADA, but expands the meaning of terms used within that definition. The term “disability” continues to mean: (A) a physical or mental impairment that substantially limits one or more “major life activities” of such individual, (B) a record of such impairment, or (C) being regarded as having such an impairment. The ADAAA expands the scope of covered individuals by adding a definition of “major life activities” that is more inclusive than the interpretation federal courts had given that phrase.

The ADAAA specifies that major life activities include, but are not limited to: caring for oneself, performing manual tasks, seeing, hearing, eating, lifting, bending, speaking, breathing, learning and working. Major life activities also include the operations of major bodily functions and functions of body systems such as the immune system and brain, including, but not limited to “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”

The effect of this expanded definition is significant. With this change, employees will likely be considered “disabled” if they have, for example, insomnia (impaired in the major life activity of sleeping), dyslexia (learning), stuttering (speaking), and attention deficit disorder (concentrating). Bending and lifting are now deemed major life activities as well. Individuals with digestive diseases or incontinence are now covered, if their impairment substantially limits them in these areas. Note that the major life activity affected need not have any relationship to working.

The ADAAA also requires that the determination as to whether someone is disabled be made without considering mitigating measures. Thus, a person whose condition is controlled by medication, prosthetics, hearing aids, assistive technology, or other medical equipment or aids can no longer be excluded from the definition of disabled because of these mitigating measures. Rather, if a person’s condition would qualify as a disability without these aids, the person is considered disabled.

The ADAAA also provides specific instructions to the EEOC. For example, the ADAAA declares that the EEOC’s current regulations are inconsistent with congressional intent because the regulations state that the statutory term “substantially limits” means “significantly restricted.” This, according to Congress, puts forth a standard that is stricter than intended by the ADA. As a result of these new instructions, the EEOC will likely broaden its definitions and analysis, making it easier for more individuals to claim that they have been discriminated against based on a disability.

In sum, under the ADAAA, more individuals will qualify as disabled because of the expansion of the definitions of “disability” and “major life activity.” Thus, employers will potentially be subjected to more liability, given that an increased number of individuals will be statutorily “disabled.” As a result, employers will likely need to respond by tightening their workplace policies and procedures to ensure that employees with disabilities are not treated differently in the workplace.

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