President Bush has now signed into law the ADA Amendments Act (ADAAA), which will expand the definition of disability and overturn Supreme Court decisions that had made it more difficult for employees to gain protected status under the Americans with Disabilities Act (ADA). The ADAAA will become effective January 1, 2009.

The ADAAA preserves the basic framework of who is considered “disabled” and therefore protected under the ADA, but expands the meaning of terms used within that definition. The term “disability” continues to mean: (A) a physical or mental impairment that substantially limits one or more “major life activities” of such individual, (B) a record of such impairment, or (C) being regarded as having such an impairment. The ADAAA expands the scope of covered individuals by adding a definition of “major life activities” that is more inclusive than the interpretation federal courts had given that phrase.

By statute, the definition of major life activities will now include “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” This list is illustrative, not exhaustive. Major life activities are also expanded to include “major bodily functions,” 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 effect of this expanded definition is significant. With this change, employees will likely be considered “disabled” if they have, for example, insomnia (impaired in the major life activity of sleeping), dyslexia (learning), stuttering (speaking), and attention deficit disorder (concentrating). Bending and lifting are now deemed major life activities as well. Individuals with digestive diseases or incontinence are now covered, if their impairment substantially limits them in these areas. The reference to “reproductive functions” may mean that employees undergoing infertility treatments are covered. Note that the major life activity affected need not have any relationship to working.

Before these changes, the ADA did not define “major life activities.” Interpretive guidelines set forth by the EEOC had provided some examples but the guidelines were less authoritative than the statute itself and were less expansive in scope than the new ADAAA definition. Courts had been left to interpret the phrase without a clear statutory definition and issued decisions that interpreted the term too narrowly, according to findings set forth by Congress in the enacted bill. The new definition of “major life activities” overturns the narrower interpretation by the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002).

These changes do not mean that every impairment that has any effect on these functions automatically qualifies as a disability. An impairment must still “substantially limit” a major life activity to qualify. However, Congress has conveyed its intent that the phrase “substantially limits” should be interpreted less strictly, and has instructed the EEOC to issue interpretive guidelines consistent with this intent. The more liberal interpretation of this phrase will also overturn portions of the Williams Supreme Court case which, according to language in the bill, “created an inappropriately high level of limitation necessary to obtain coverage under the ADA.”

The ADAAA will also require that the determination as to whether someone is disabled be made without considering mitigating measures. Thus, a person whose condition is controlled by medication, prosthetics, hearing aids, assistive technology, or other medical equipment or aids can no longer be excluded from the definition of disabled because of these mitigating measures. Rather, if a person’s condition would qualify as a disability without these aids, the person is considered disabled. This change overturns the Supreme Court’s decision in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999).

The ADAAA provides an exception, however, where ordinary eyeglasses or contact lenses are used to correct poor vision. Poor vision that is corrected through ordinary eyeglasses or contact lenses is not a disability. This exception to the requirement that mitigating measures be ignored is limited to vision. It does not extend, for example, to hearing impairments, even where a hearing aid is used. Therefore, a person whose poor vision is corrected by eyeglasses is not disabled, but a person whose poor hearing is corrected by a hearing aid may be disabled.

Consistent with its special treatment of corrective lenses, the ADAAA prohibits any employment test or qualification standard that tests applicants based on their uncorrected vision, unless a certain level of uncorrected vision is required by the job and is a business necessity. In most instances, therefore, applicants required to take a vision test must be permitted to use corrective lenses.

Other important clarifications to the ADA include the following:

• Individuals whose disability is in remission or is episodic are still considered disabled if the condition would qualify as a disability when active.

• The “regarded as” portion of the definition of disability does not apply to impairments that are “transitory and minor,” which is defined to mean “an actual or expected duration of six months or less.” This six-month limitation applies only to the “regarded as” portion of the definition. There is no six-month limitation applicable to individuals who actually have a disability.

• No claim of “reverse disability discrimination” may be made by a non-disabled person.

• These changes apply to the definition of disability used in the Rehabilitation Act as well. The Rehabilitation Act is a sister statute to the ADA, prohibiting discrimination on the basis of disability in programs conducted by federal agencies, in programs receiving federal financial assistance, in federal employment, and in the employment practices of federal contractors.

While the changes enacted in the ADAAA undoubtedly expand the scope of individuals covered by the ADA, they do not limit employers’ ability to raise defenses, including defenses as to whether a requested accommodation is reasonable. Because of the expanded scope of coverage, however, the ADAAA may result in the defense of ADA cases becoming more difficult and expensive.

Reprinted by permission of Todd H. Lebowitz, a partner in the Cleveland office of Baker & Hostetler, an international law firm representing employers.

This article appears in the November 2008 issue