The ADA Amendments Act of 2008

The ADA Amendments Act was passed overwhelmingly by Congress in response to years of court decisions narrowly defining who was sufficiently disabled to have rights under the Americans With Disabilities Act (“ADA”).

There was surprisingly broad Congressional consensus that these decisions had resulted in the dismissal of far too many ADA lawsuits without the courts ever considering the merits of whether there had been discrimination or failure to provide reasonable accommodation.

Changes in the Definition of “Disability”

To address this situation, the ADA Amendments Act retains the ADA’s basic three-fold definition of “disability” as either:

  1. An impairment that substantially limits one or more major life activities;
  2. A record of such impairment; or
  3. Being regarded as having such an impairment.

However, it changes the way these statutory terms will be interpreted.

Most significantly, the ADA Amendments Act emphasizes that the definition of “disability” should be interpreted broadly, and:

  • Directs the EEOC to revise its regulations defining the term “substantially limits” to require a lesser degree of limitation.
  • Expands the definition of “major life activities” by including two non-exhaustive lists:
    • The first list adds many activities that the EEOC has not previously recognized (e.g., reading, bending, and communicating).
    • The second list includes major bodily functions (e.g., “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions”).
  • States that mitigating measures, such as medication or prosthetic limbs, shall not be considered in assessing the existence of a disability, with the exception of “ordinary eyeglasses or contact lenses.” This means that in determining whether a person is disabled, their condition will be evaluated as if they were not using the medication or other mitigating measure.
  • Clarifies that an impairment that is episodic or in remission is a disability, if it would substantially limit a major life activity when active.

Significance of These Changes

These changes substantially broaden the reach of the ADA, greatly expand the class of individuals who may be considered disabled, and significantly increase both the employer’s responsibility for reasonable accommodation and areas of potential liability.

Previously, in many ADA cases, employers were able to prevail prior to trial on the basis that the employee or applicant could not establish they had a disability for ADA purposes.

Now, many more ADA cases will be decided on the merits — on the basis of how the employer treated the individual, rather than whether the individual has a disability.

Individuals with medical conditions not meeting a common-sense definition of disability may now very well qualify as having a disability under the ADA.

Bottom Line for Employers

These changes to the ADA make it more important than ever to:

  • Exercise care in making employment decisions involving persons known or believed to have significant medical conditions, even if not manifested in obvious interference with their activities.
  • Take seriously all requests for reasonable accommodation from such persons (whether or not they use the “magic words” “reasonable accommodation”).
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