Larkin Hoffman Daly & Lindgren Ltd.

Overview
President Bush signed the ADA Amendments Act of 2008 on September 25, 2008. The law will become effective on January 1, 2009. The ADA Amendments Act redefines the definition of “disability” and effectively overturns several United States Supreme Court decisions that construed the Americans with Disabilities Act (“the ADA”) narrowly. As a result of the ADA Amendments Act, more employees will have protection under the ADA.

Background and Purpose
The ADA Amendments Act is intended to reclaim the original scope and purpose of the 1990 ADA which was meant to provide broad coverage through a comprehensive, national mandate against discrimination based on disability. Congress expected courts to interpret “disability” expansively, just as they had the definition of “handicapped” under the Rehabilitation Act of 1973, but this has not been the case. In response, the ADA Amendments Act rejects the Supreme Court decisions in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), which collectively narrowed the scope of protection afforded by the ADA. The Sutton Court ruled that individuals who compensated for their disabilities with medications or other mitigating measures may not qualify for protection under the ADA. The Toyota Court interpreted “substantially limits” to require a greater degree of limitation than originally intended by Congress. In the aftermath of these cases, lower courts have found some individuals with substantially limiting impairments not to be disabled.

Provisions
The ADA Amendments Act reinstates a broad scope of protection available under the ADA by redefining the term “disability” and favoring coverage to the maximum extent permitted by the terms of the ADA. The ADA Amendments Act makes several changes to the existing law.

• The Act expressly rejects the Toyota Court’s holding that “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.” Instead, Congress directed the Equal Employment Opportunity Commission to revise the portion of the regulation that defines the term “substantially limits” as “significantly restricted” to be consistent with the broad protections afforded under the ADA Amendments Act.
• The ADA Amendments Act prohibits employers and courts from considering mitigating measures such as the use of prescription drugs, assistive technology, auxiliary aids/services, or prosthetics in making disability determinations. The ameliorative effects of ordinary eyeglasses or contact lenses, however, shall be considered in making such determinations. 
• An individual may still qualify as disabled under the ADA where the individual’s impairment is  episodic or in remission as long as the impairment “substantially limits a major life activity when active.” An impairment that substantially limits one major life activity need not limit others in order to be considered a disability, effectively overturning the Toyota case. 
• The ADA Amendments Act clarifies the definition of a “major life activity” under the ADA. Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. A major life activity also includes the operation of a major bodily function, including functions of the immune system, normal cell growth, digestive, bowl, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.