Cook, Yancey, King & Galloway, APLC As 2009 quickly approaches, so do several changes in federal employment laws that could have an impact on your business. One such change may result in a greater number of employees being considered “disabled” under federal law. Pursuant to recent legislation, it will soon be easier for individuals to qualify for protection under the Americans With Disabilities Act (“ADA”). In September 2008, President George W. Bush signed into law the ADA Amendments Act of 2008 (“ADAAA”), under which the definition of who is covered under the ADA is to be broadly construed to cover individuals to the “maximum extent permitted” by the ADA. The ADAAA is effective January 1, 2009. As background, the ADA protects employees or applicants who are “qualified individuals with a disability” from being discriminated against because of their disability. A “disability” is defined as: (1) a physical or mental impairment that substantially limits one or more of major life activities; (2) a record of such impairment; or (3) being regarded as having such an impairment. Beginning in the late 1990’s, the U.S. Supreme Court decided a series of cases which narrowed the scope of the ADA’s definition of “disability” by seizing on the ADA’s congressional findings that “some 43,000,000 Americans have one or more physical or mental disabilities” and that individuals with disabilities are a “discrete and insular minority.” The Supreme Court narrowly construed the definition in a way that excluded a range of individuals from coverage, including individuals with diabetes, cancer, epilepsy, and artificial limbs. While the core definition of a “disability” under the ADAAA remains unchanged, its scope is broadened through a number of significant changes to key terms. For instance, the new law reverses prior court decisions which held that mitigating measures such as medication or devices were to be taken into account in determining whether an individual was substantially limited in a major life activity. Under the ADAAA, the determination of whether an individual has a “disability” must be made on the basis of the impairment or condition alone, without considering the ameliorative effects of mitigating measures. However, the new law provides that ordinary eyeglasses and contact lenses may still be considered when determining whether a person is “disabled.” The new law also adds for the first time specific examples of major life activities, including caring for oneself, seeing, hearing, eating, sleeping, walking, concentrating, and the operation of major bodily functions. Moreover, the ADAAA makes clear that impairments that are episodic or in remission are considered disabilities if the impairment would substantially limit a major life activity when the condition is considered in its active state. Under prior law, many courts held that episodic or intermittent impairments, such as epilepsy or post-traumatic stress disorder, were not substantially limiting and thus were not covered under the ADA. Another major change concerns the ADA’s coverage of individuals who are “regarded as” having a physical or mental impairment that substantially limits a major life activity. Under current law, many courts established a very high standard, requiring plaintiffs to essentially prove that the employer mistakenly regarded them as having impairments that substantially limited a major life activity. The new law provides that an individual meets the requirement of “being regarded as having such an impairment” if the individual proves that he or she has been subjected to prohibited action because of an actual or perceived mental or physical impairment, whether or not the employer believed that the impairment was substantially limiting. The bottom line for employers is that more employees will fit within the expanded definition of disability under the ADA. Due to this fact, employers should consider providing refresher training on the ADA’s requirements to their supervisors and human resources professionals. Employers should also note that because the ADA requires employers to provide qualified disabled persons with reasonable accommodations, the ADAAA will expand the number of employees who may be entitled to such accommodations.