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Get ready to relearn the Americans with Disabilities Act -- by Jan. 1, 2009. New legislation signed last month has defanged a common employer defense, and the changes are going to have real repercussions in the workplace.

On Sept. 25, 2008, with his father looking on, President George W. Bush quietly signed legislation that significantly broadened the scope of protection available under the ADA. The legislation, known as the ADA Amendments Act of 2008 (ADAAA), "carries out the ADA's objectives" to expand coverage by, among other things, expressly rejecting Supreme Court cases that narrowly construed the definition of "disability" under the ADA.

The critical inquiry under the amended law is no longer on whether the individual has a disability, which has been a primary battleground of past court decisions. Rather, as of Jan. 1, 2009, the focus is directed to whether covered entities have complied with their obligations to reasonably accommodate disabled applicants and employees.

Here, we discuss what has changed and what employers need to do in response.

BROAD COVERAGE

Congress enacted the ADA in 1990 to "provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." Over time, however, Supreme Court decisions, including Sutton v. United Air Lines Inc. (1999) and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams (2002), whittled away at the definition of disability, narrowing the range of coverage, so that individuals with serious impairments were often left uncovered.

The ADAAA is intended to redress the broad array of federal court cases that, in the words of the act, have "created an inappropriately high level of limitation necessary to obtain coverage under the ADA," resulting in decisions holding that "people with a range of substantially limiting impairments are not people with disabilities."

Throughout the congressional deliberations, there was broad agreement that the federal disability law return to the broad coverage that Congress envisioned when it passed the ADA in 1990.

The ADA defines "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.

Although the amendments fundamentally maintain the ADA's "disability" definition, the ADAAA takes several steps to achieve a broader interpretation of these terms.

• Substantially limits: The ADAAA states that "The term 'substantially limits' shall be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008." This Findings and Purposes section squarely condemns narrow judicial interpretations of "substantially limits."

Thus, the ADAAA explicitly rejects the strict standard created by the Supreme Court in Williams that to be substantially limited in a major life activity, an "individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives."

Under the new law, Congress commanded a broad reading of the term "disability" and declared whether an individual has a disability should not "demand extensive analysis."

The ADAAA also instructs the Equal Employment Opportunity Commission to issue new regulations re-defining "substantially limits," from its current definition ("significantly restricts") to comport with the act's broader view.

• Mitigating measures: The ADAAA clearly states that a determination of whether an individual is substantially limited in a major life activity shall be made without regard to mitigating measures (e.g., medication, medical supplies, equipment, and other auxiliary aids or services). Thus, the new law rejects the Supreme Court's Sutton decision that allowed consideration of mitigating measures in determining if someone was disabled. So, for example, a diabetic who uses insulin may nevertheless be deemed disabled even if the insulin controls the sugar imbalance. (Prescription eyeglasses and contact lenses, however, may still be considered in assessing whether an individual is "substantially limited.")

• Major life activities: The ADAAA now includes a nonexclusive list of major life activities, including sleeping, learning, concentrating, thinking, and communicating. A significant addition now lists the operation of "major bodily functions," including functions of the "immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions." These changes will help eliminate the confusion about what conditions may fall under the ADA and direct attention to the underlying medical condition.

• "Regarded as" analysis: The ADAAA expands "regarded as" protections by prohibiting discrimination based on the employer's perception of a mental or physical impairment, whether or not the individual can establish that the impairment actually limits, or is perceived to substantially limit, a major life activity.

The new law also clarifies that "regarded as" claims cannot be based on impairments that are transitory (i.e., an actual or expected duration of six months or less) and minor. Importantly, the amendments make clear that employers are not required to provide a reasonable accommodation to individuals who are "regarded as" disabled, an issue over which the courts were previously split.

WHAT IMPACT?

What impact will the ADAAA have on the workplace?

Some employers may not see much change. In states such as California, New Jersey and New York, state or local laws are even more expansive than the amended ADA, and employers in these states may already be used to the broader disability coverages under state and local laws.

Nationwide, however, the expanded definition of "disability" under the act will increase the number of individuals protected by federal law. Employers should understand that the range of ADA coverage will expand significantly, while defenses and employer modes of responding to disability claims are narrowed.

For example, the ADAAA makes clear that impairments that are episodic or in remission can still be considered a "disability" if they would substantially limit a major life activity when active. Accordingly, employers, in deciding if a reasonable accommodation is owed to an employee, will need to consider not only the current effects of an impairment, but also what the effects would be if the impairment were in an active state.

If employees or applicants claim a disability and the employer requests substantiation, some documentary evidence from a healthcare practitioner supporting the disability claim and reflecting the limitation(s) will still be needed to assess if a covered disability exists.

But the ADAAA removes the focus from a "disability" inquiry, and places the focus squarely on the individualized interactive process. Thus, employers must be prepared to engage applicants and employees in a reasonable accommodations conversation and, as appropriate, provide qualified individuals with accommodations to perform their essential job duties.

Of course, identifying and offering reasonable accommodations does not mean that any individual is entitled to a job. The ADAAA makes it clear that the individual must be qualified. Reasonable accommodations are designed to put the applicant or employee on an equal footing with other qualified individuals.

IT'S LOOMING

With a Jan. 1, 2009, effective date looming, employers should review their policies and practices governing the ADA's interactive process and revisit the essential functions of the jobs to ascertain what functions are the core responsibilities that may require accommodations.

Remember that if the disability is obvious, a duty to accommodate might exist even if the employee has not asked for an accommodation. In one recent case, Brady v. Wal-Mart Stores Inc. (2008), the 2nd U.S. Circuit Court of Appeals affirmed an award of $900,000 to a former pharmacy assistant with cerebral palsy whose impairment obviously affected his gait and speech, but who never requested an accommodation.

In light of the new focus on reasonable accommodations, employers should remember that the ADA itself provides a nonexhaustive list of accommodations, including, for example, acquiring certain equipment; adjusting exams, training materials, or policies; providing qualified interpreters; reallocating nonessential job functions; permitting part-time or modified work schedules; and reassigning employees to vacant, equivalent positions. In addition, the EEOC and a host of court decisions make clear that unpaid leaves must also be considered.

We would not be surprised to see an initial uptick in litigation involving the scope of the expanded "disability" definition, the extent of an employer's reasonable accommodation obligations, and the employer's "undue hardship" defense (which sometimes, although rarely, can limit the accommodations required).

Consequently, in the new world of the ADAAA, employers should keep records of accommodations requests made and accommodations denied or provided, along with some evidentiary back-up for the decisions made. Further, consider refresher training of human resources professionals and line managers about the ADA's requirements about the interactive process and reasonable accommodations.

The ADA is about to change. Your company's managers need to be ready.

Lawrence Lorber, a partner in Proskauer Rose's Washington, D.C., office, testified in Congress on behalf of the U.S. Chamber of Commerce concerning the ADAAA. Fredric C. Leffler is senior counsel in Proskauer Rose's New York office, where Samantha Morris is an associate. The authors thank Meredith Bailey for her assistance.

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