The Americans with Disabilities Act (ADA) protects employees who have, or are regarded as having, a physical or mental impairment that substantially limits one or more of their major life activities. Substantial amendments to the ADA became effective on January 1, 2009. By these amendments, Congress has made it clear that in recent decisions the United States Supreme Court overly restricted the scope and impact of the ADA. The amendments effectively overturn these Supreme Court ADA decisions and impose greater burdens on employers in a number of important respects.

In view of the amendments, discussed in more detail below, employers should take the following steps:

  • The negotiation process between employers and their employees who seek accommodation to their disabilities will now receive more attention from the courts and antidiscrimination agencies. They will also focus more on how employers determine which accommodations are reasonable. Thus, employers must ensure that written job descriptions with complete statements of the essential functions of each position are in place.
  • Employers must review and modify the ADA evaluation checklist that is sent to the employee’s treating physician.
  • Employers must implement training programs for both HR and management personnel, focusing on the interactive process and the scope of reasonable accommodations required by law.

First, these amendments, codified in the ADA Amendments Act of 2008 (the Act) specifically mandate that the term “disabled” in the ADA be broadly interpreted. According to Congress, numerous court decisions under the ADA have incorrectly construed that the term – and thus the ADA’s applicability – too narrowly. Congress’s express statement that the ADA is to be broadly construed will minimize disputes concerning whether an employee’s condition is a disability under the ADA, and will place most of a reviewing court’s or agency’s focus on the interactive process that occurred between a complaining employee and his or her employer. It is in the interactive process that it is determined what, if any, accommodations the employer will provide, and what type of accommodations the employer deems to be reasonable under the circumstances.

Second, the Act expressly overturns the Supreme Court’s decision in Sutton v. United Airlines, which held that whether an employee was indeed disabled was to be determined in light of mitigating measures used by the employee (such as medication, medical supplies, or equipment). For example, before the Act, an employee who had epilepsy that was completely controlled by medication would generally not have been considered disabled. Now, when looking at the employee’s condition without the mitigating effects of anti-seizure medication, the employee would, indeed, likely be considered disabled. Ordinary eyeglasses or contact lenses are excepted from this rule, meaning that an employee whose vision is corrected with ordinary lens correction is still to be assessed with use of the corrective lenses.

Third, the Act broadens the definition of “major life activities” that an employee must show are limited by his or her impairment in order to establish he or she is disabled. The Act rejects Supreme Court decisions that strictly construed the term “major life activities,” decisions that interpreted the term to apply only to “activities that are of central importance to most people’s daily lives.” Rather, the Act provides a more expansive definition by including a non-exclusive list of what constitutes a “major life activity.” The Act also includes a non-exclusive list of “bodily functions,” and provides that performing any of such functions is a “major life activity.”

Fourth, the “regarded as” branch of the ADA has been significantly enlarged. Under the ADA, a non-disabled employee may recover damages against an employer if the employee can show the employer regarded him or her as disabled. Before the amendments, an employee attempting to prove an employer was liable for “regarding” him or her as disabled had to show not only that the employer perceived he or she was disabled but also that the employer perceived that the disability substantially limited one or more of the employee’s “major life activities.” Employers may now face liability where an adverse action is based only on a perception that the employee has an impairment. The employee no longer needs to demonstrate that the employer perceived that the impairment was substantially limiting in any way.

Congress has granted the EEOC authority to issue regulations implementing the Act’s definition of disability. Proposed regulations have not yet been published. We will watch for those regulations and provide an update when any regulations become available.



If you have any questions, please contact one of the authors of this Client Update:
Gary Feldman
David M. Cogliano
Laurie Alexander-Krom

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