On January 1, 2009, new amendments to the ADA became effective which have considerably broadened the definition of “disability” in the workplace. There is no question that these amendments will have an impact on how employers respond to disability issues. The amendments reject previous Supreme Court holdings regarding the scope of the term “disability” and specifically identify certain limitations which will now qualify as disabilities under the act. Any individuals that fit within the scope of the new ADA definitions are protected by the ADA and may be entitled to “reasonable accommodations” in performing their job duties. The most significant aspects of the new amendments are summarized as follows:

1. Definition of “Disability” Expanded

The amendments instruct courts to construe the definition of “disability” broadly to provide coverage “to the maximum extent permitted” by the statute. This is a response to court decisions which were more restrictive in applying the definition of disability.

2. The Term “Major Life Activity” is All Encompassing

Previously, the ADA did not enumerate what constitutes a “major life activity” which must be adversely affected in order to claim disability under the act. The new ADA specifically provides a complete list of life functions which have to be taken into consideration when determining whether a worker is disabled, including: “caring for oneself; performing manual tasks; seeing; hearing; eating; sleeping; walking; standing; lifting; bending; speaking; breathing; learning; reading; concentrating; thinking; communicating; and working.” If one of these functions is adversely affected, then the worker may be entitled to the protection of the ADA.

3. Workers Suffering From Many Common Diseases and Ailments May Be Covered

The operation of any “major bodily function” is also considered a major life activity under the new amendments. The amendments define “major bodily functions” to include “neurological; brain; respiratory; circulatory, endocrine; and reproductive functions.” Based on the expanded scope of what is considered a disability, those workers with sleep disorders, digestive disorders, fertility-related issues, hearing problems (even if addressed with a hearing aid,) learning impairments and attention deficit disorder could be considered disabled.

4. Corrective or Mitigating Measures Cannot Be Considered

Under the amendments, an employer cannot consider corrective measures (such as medication, prosthetics or medical devices) when determining whether an employee has an impairment that makes them disabled under the ADA. The new amendments reject the 1999 Supreme Court decision inSutton v. United Airlines Incorporated, which held that an employee who is able to overcome an impairment through the use of corrective measures is not considered disabled under the act. The amendments require employers to largely ignore any and all mitigating measures used by the worker in assessing whether the worker is disabled. An employer is still able to consider eyeglasses and contact lenses when determining if someone is disabled, but not hearing aids.

5. The Amendments Change The Legal Requirements For Employees Who Are “Regarded As” Having An Impairment

Under the current ADA, an individual is only required to prove he/she is regarded as disabled by his employer and is no longer required to demonstrate that the perceived impairment actually substantially limits a major life activity.

6. Transitory And Minor Impairments Not Covered By ADA

On a positive note, the new amendments did make it clear that the ADA will not apply to “minor” and “transitory” impairments which last or are expected to last for six months or less. However, a condition that is episodic or in remission is still a disability if it substantially limits a “major life activity” when the condition is in an active stage (e.g., cancer or diabetes).

Employers, management and human resource professionals must recognize that there will likely be an increase in requests for accommodations made by workers who now have an easier burden of proving they are entitled to that relief. Employers will need to be more cautious in considering requests for accommodations and should involve counsel in the fact-gathering and decision-making process. The new amendments also would signal that it is a good time to review job descriptions, disability policies and handbook provisions to prepare for the impact of the ADA amendments. Companies should provide training to their HR staff and managers to limit risk for workplace disability issues. The new amendments will likely increase litigation as more workers will fit within the ADA protections.