On September 25, 2008, President Bush signed into law the ADA Amendments Act of 2008 (“ADAAA”). The ADAAA goes into effect for all employers and employees on January 1, 2009. The law, which amends the Americans with Disabilities Act of 1990 (“ADA”), clarifies the ADA’s definition of disability and overturns certain United States Supreme Court decisions and EEOC regulations that narrowly interpret the ADA. More employees are likely to qualify for reasonable accommodations and protection from discrimination under the new law, but the law also provides employers with some much needed clarity about which employees are entitled to the ADA’s protection.

The ADAAA expands the scope of the term “disability” as it is used in the ADA. While the text of the definition remains essentially the same, Congress instructs that it “shall be construed in favor of broad coverage of individuals under [the ADAAA], to the maximum extent permitted by the terms of [the ADAAA].” The ADAAA provides little clarity as to what this means, but this language indicates that conditions such as carpal tunnel, severe back pain, obsessive-compulsive disorder, learning disabilities, and depression, which have not always qualified as disabilities under the ADA, are more likely to be treated as disabilities by courts under the new law.

The ADA defines the term “disability” as:

1. a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
2. a record of such an impairment; or
3. being regarded as having such an impairment.

42 U.S.C. § 12102. The ADAAA does not alter this basic definition of disability, but provides a great deal more information about what this definition means. The ADAAA provides several examples of “major life activities” including: “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” The ADAAA also states that the term “major life activities” includes “the operation of a major bodily function 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 ADAAA makes clear that episodic impairments or medical conditions that are in remission are disabilities if they would substantially limit a major life activity when active.

These changes indicate that ailments such as cancer, diabetes, serious heart conditions, and epilepsy, which some courts had found do not always constitute disabilities under the ADA, are likely to consistently be considered disabilities under the new law.

The new provisions contained in the ADAAA also reverse prior case law from the U.S. Supreme Court under which courts were required to consider the corrective effects of mitigating measures (for example, prosthetics, medication, or hearing aids) in determining whether an individual is disabled. Under the ADAAA, most mitigating measures are not to be considered when determining whether an impairment substantially limits a major life activity. The ADAAA makes an exception for ordinary eyeglasses and contact lenses, however, and states that they may be considered in determining whether an individual has an impairment that substantially limits a major life activity.

In the past, the ADA provided protection to individuals who were “regarded as” disabled by their employers. However, in order to assert a claim, courts required an individual to establish that an employer regarded him or her as substantially limited in a major life activity. The ADAAA lowers this standard. Under the new law, an individual only needs to establish that he or she was subjected to a prohibited action because of a perceived mental or physical impairment, regardless of whether it is “perceived to limit a major life activity.” However, the above prohibition does not apply to impairments that are “transitory and minor.” “Transitory” impairments are defined as those “with an actual or expected duration of 6 months or less.”

The ADAAA states that the intent of these changes is that employers stop engaging in “extensive analysis” to determine what constitutes a disability under the law, and focus instead on complying with their obligation not to discriminate and to provide reasonable accommodations to individuals who are otherwise qualified to do a job.

Finally, The ADAAA makes clear that reverse discrimination claims may not be made under the ADA. Specifically, the Act states that individuals who do not have disabilities may not claim that they were subject to discrimination because of their lack of a disability.

The employment provisions of the ADA apply to businesses that have 15 or more employees on the payroll. This includes full and part-time employees. If you have several sites that are all owned, operated, and managed by your business, then you must count all the employees at these sites. But, if you have different sites that are not owned, operated, or managed by the same business, then you have to count all the employees only if your business is an "integrated enterprise." Additionally, since the West Virginia Human Rights Act and decisions thereunder broaden the ability of individuals to sue any employer for disability discrimination, all West Virginia employers should consider compliance with ADA guidelines regarding individuals as essential.

Although the ADAAA makes some fairly significant changes to the law, employers that already have good employee-disability practices in place will not have to make many changes to their practices or procedures. The following tips should help employers to comply with the new law:

• Employers should review their employment policies on disabilities and reasonable accommodations. Most employers have very brief policies that will not need to be changed in light of the new law, but employers that have lengthy, detailed policies that include definitions of what constitutes a disability should consult with legal counsel about whether any changes are necessary.
• Employers that have denied reasonable accommodation requests to current employees because the employer determined that the employee did not satisfy the ADA’s definition of the term “disability” should consider whether the new law changes their analysis.
• Human resources professionals and managers who deal with accommodation requests should be made familiar with the changes in the law. The takeaway lesson should be that many more individuals now qualify for protection from discrimination and for reasonable accommodations under the law, so when an employee makes them aware of a serious physical or mental impairment, the best rule of thumb will be to assume that the condition is a disability and to focus on the employer’s reasonable accommodation and non-discrimination obligations. If there are doubts about whether an impairment constitutes a disability under the law, it is advisable to consult with legal counsel.
• Because more employees are now likely to qualify for the ADA’s protections, employers are likely to receive more reasonable accommodation requests from employees. Employers should ensure that their managers and human resources professionals have the training they need to appropriately respond to such reasonable accommodation requests. (The ADAAA has not made any changes to the ADA’s reasonable accommodation obligations). Keep in mind that it is often helpful to consult with legal counsel when an employer is presented with a particularly challenging or questionable request.