On September 24, 2008, President George Bush signed into law the ADA Amendments Act of 2008 ("ADAAA"), which defines various terms found in the Americans With Disabilities Act of 1990. In so doing, the ADAAA overturned years of pro-employer case law and greatly expanded the class of individuals protected by the Americans With Disabilities Act ("ADA").
Under the ADA, an individual may be "disabled" if they have a physical or mental impairment that substantially limits their ability to perform a major life activity. Prior to the ADAAA, this definition had been narrowly construed. The ADAAA now mandates a broad interpretation of the definition of "disability". For instance, the ADAAA provides a non-exhaustive list of examples of some "major life activities" that, if substantially limited, suffice to establish a "disability" under the ADA. Such activities include: seeing, hearing, eating, sleeping, lifting, standing, walking, thinking, learning, reading, communicating, concentrating, performing manual tasks and working. "Major life activities" also now include the operation of bodily functions such as immune system, normal cell growth, digestive system, bladder, bowel, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. Pre-ADAAA, many of these activities would not have been considered a "major life activity"; thereby, failing to trigger the protection of the ADA.
In addition to designating new "major life activities", the ADAAA also broadened the U.S. Supreme Court's prior narrow definition of what constitutes a "substantial limitation" on a major life activity.
Of major significance is the ADAAA's new prohibition against considering any remedial effects of medication or treatment in determining whether a person is "disabled". For example, an individual with high blood pressure is now considered "disabled" if, without any medication, they would be substantially limited in a "major life activity". This is the case even if that same person experiences absolutely no limitations while on medication for high blood pressure. This drastic change alone will extend the protection of the ADA to millions more individuals.
The above are just some of the changes impacting employers and disabled individuals. Employers should immediately update policies and implement management training appropriate for handling the heightened duties under the ADAAA.
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