Created December 29, 2008

President Bush signed the ADA Amendments Act of 2008 (the “Act”) into law on September 25, 2008.   The Act will become effective January 1, 2009 and expands the scope of disabilities covered under the Americans with Disabilities Act of 1990 (the “ADA”), while also expanding the protections available to employees by rejecting two Supreme Court decisions that had narrowed critical definitions in the ADA.

The Act provides that “the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.”  Congress created this permissive standard in response to the stricter standards described by the U.S. Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002).  In Sutton, the Court held that the determination of whether an impairment substantially limits a major life activity must be balanced against the “ameliorative effects of mitigation measures,” such as medication or medical devices.  In Toyota Motor, the Court held that (1) the terms “substantially limited” and “major life activities” must be strictly construed when determining the existence of a qualifying disability, and that (2) an individual must show that such disability prevents or severely restricts him/her from “doing activities that are of central importance to most people’s lives.”  These decisions, and their lower court progeny, denied ADA protections for individuals with various conditions, including diabetes, epilepsy, heart disease, mental disabilities and cancer.  Congress’ rejection of the two Supreme Court decisions now establishes a new, more permissive framework through which ADA protections must be viewed, and will likely extend ADA’s reach to some workers that were previously excluded.

In addition to addressing the Court’s interpretation of the ADA, the Act also adds new definitions and provisions that provide guidance for determining whether an individual’s impairment is considered a disability.  In particular, the Act contains the following amendments:

• The Act states that the term “disability” shall be construed in favor of broad coverage for individuals;
• The Act prohibits the consideration of “mitigating measures” such as medication, medical supplies, prosthetics, hearing aids, mobility devices and assistive technology, in determining whether an individual has a disability[1];
• The Act clarifies that an impairment that substantially limits one major life activity need not limit other major life activities in order to be a disability[2]; and
• The Act provides that impairments that are episodic or in remission are considered disabilities if they would substantially limit a major life activity when active.

The amendments in the Act will apply to all employers who were previously covered by the ADA (i.e. those with 15 or more employees).  In the short term, this Act will mean that more ADA cases are going to pass initial threshold tests.  Before its passage, courts dismissed many cases on the grounds that the individuals were not “disabled.”  Employers must now assume that more employees will be covered by the ADA and correspondingly approach their employment decisions with that in mind.  Employers may also wish to revisit their existing employee handbooks and policies in order to avoid the future potential of improperly denying accommodations.