Recent amendments to the Americans with Disabilities Act (“ADA”) are certain to have a far-reaching impact on employers, as the new amendments expand the ADA’s reach and reverse an employer-friendly trend in court decisions that interpreted the statute. By expanding certain key definitions, the 2008 ADA Amendments bring within coverage of the statute a large number of individuals previously excluded. Although the ADA maintains its primary definition as to what it means to be disabled (those with “a physical or mental impairment that substantially limits one or more major life activities” or those “regarded as disabled”) the amendments expand what it means to “substantially limit,” what constitutes a “major life activity,” and alters the “regarded as disabled” analysis. The new legislation became effective on January 1, 2009.
The 2008 ADA Amendments provide broader protections to disabled workers and to reverse employer-friendly court decisions that Congress deemed too limiting. The ADA now prohibits the consideration of mitigating factors, including medication, physical or other aids, in determining whether or not someone is disabled. As such, even where the assistance of such items allows an individual to function as well as his or her non-disabled counterparts, he or she will now be protected by the ADA.
Moreover, the 2008 ADA Amendments expand the definition of a “major life activity” to include additional activities. A second new list of “major life activities” contained in the amendments include major bodily functions, such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. Additionally, the amendments clarify that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when the condition is active. The effect of these changes are to classify more individuals as disabled and, thus, eligible for accommodations.
Employers will likely encounter more accommodation requests and will see a rise in the number of claims brought for alleged violations of the ADA, as the number of those eligible to sue grows exponentially. The law is being hailed as one of the most significant pieces of civil rights legislation in recent years.
Employers would be well advised to be exacting regarding the process to be followed in addressing ADA issues, including the necessary “interactive dialogue” with an employee who seeks an accommodation, and to seriously consider making accommodations where feasible.