Well, it’s been a while since my last post. I tried two cases and went on vacation.  Wow. I came back from Europe to a full fledged financial crisis.  Well, don’t read this post if you expect any advise or wisdom about the plunge. I’m a labor lawyer.  One bit of a surprise… I came back to find a “new and improved” Governor Jon Corzine pontificating about the need to make New Jersey “business friendly.” Of course, just months earlier, Corzine enthusiastically signed bills dumping new taxes on employers and businesses, even as they were leaving the state in record numbers. Maybe too little. Maybe too late. Welcome, aboard Governor.

Anyway, this blog is about the new amendments to the American with Disabilities Act (”ADA”). Congress enacted some important changes to the ADA,  called the ADA Amendments Act of 2008 (“ADAAA”), and I think it is very important for employers, employees, and unions to know what they are.  The changes go into effect on January 1, 2009.

What’s the Current Law? Currently, 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. However, the ADA does not explicitly define the terms “impairment,” “substantially limits,” or “major life activity.”

Several U.S. Supreme Court decisions interpreted the ADA as setting a very high standard in order to qualify as a disabled individual. This standard was such that it actually excluded many employees who common sense would seem to dictate should have been treated as disabled. In Toyota Motor Mfg. of Kentucky, Inc. v.Williams, 534 U.S. 184 (2002), for example, the Supreme Court interpreted “substantially limits” to mean preventing or severely restricting an individual from doing activities that are of central importance to most people’s daily lives. In Sutton v. United Air Lines Inc., 527 U.S. 471 (1999), the Supreme Court stated that measures taken to mitigate physical and mental impairments must be considered when deciding whether an individual is substantially limited in a major life activity.

What’s the New Law? The new law rejects the Supreme Court’s statutory interpretation as too restrictive and specifically overturns these and other decisions. The definition of disability is expanded to be read broadly and to cover more plaintiffs.  The Act widens the definition of “impairment.” An impairment need only limit one major life activity, and an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. This provision is intended to clarify that the ADA applies to individuals suffering from illnesses such as diabetes, cancer or epilepsy who, in some cases, were previously denied protection because their conditions could be treated with medication or were in remission.

What are Major Life Activities? The new law now specifies certain activities that qualify under the Act as a “major life activity.” These 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; working. Also included are major bodily functions, such as: functions of the immune system; normal cell growth; digestive bowel bladder; neurological; brain; respiratory; circulatory; endocrine; reproductive;

What about Mitigating Measures? With the exception of “ordinary eyeglasses and contact lenses,” the amendments eliminate consideration of mitigating measures in determining whether a person is substantially limited in a major life activity. The proposed language explicitly forbids consideration of the following: medication; medical supplies, equipment or appliances; low vision devices; prosthetics; hearing aids and other implanted hearing devices; mobility devices; oxygen therapy equipment and supplies;use of assistive technology; reasonable accommodations or auxiliary aids or services; learned behavioral or adaptive neurological modifications;

An entity covered by the ADA also may not use qualification standards, employment tests or other selection criteria based upon an individual’s uncorrected vision unless the entity can show job-relatedness or business necessity.

What about changes to the “Regarded As” Standard? The amendments lower the standard to prove an employer discriminated against an individual whom it “regarded as” having a disability. Traditionally, an individual claiming she or he was “regarded as” having a disability had to prove either the employer mistakenly regarded the individual as having an impairment that substantially limited a major life activity or the employer mistakenly believed that an actual impairment substantially limited the individual. The amendments will hold an employer liable under a “regarded as” theory if the individual can show discrimination because of an actual or perceived physical or mental impairment, whether or not the impairment actually limits or is perceived to limit a major life activity.

On the plus side, however, the ADAAA clarifies that “regarded as” claims cannot be based on transitory and minor impairments where the impairment is expected to last less than six months. The ADAAA also clarifies that employers are not required to provide a reasonable accommodation to individuals who are regarded as disabled, an issue over which the federal courts of appeals were previously split.

What Should Employers Do? The expanded definition of “disability” necessarily means that there will be more employees who, as needed, will seek a reasonable accommodation.  There is also a risk that there will be more lawsuits. Reduce exposure to liability by reviewing internal procedures and making sure that supervisors and managers are properly trained.  Focus on making sure that they know exactly what they will need to do when an employee asks for a reasonable accommodation.