On January 1, 2009, the ADA Amendments Act of 2008 became effective. The new statute overturns Supreme Court decisions that narrowly construed the Americans With Disabilities Act, and provides clarification regarding some of the terms in the ADA. Although the final bill represented a compromise between the business community and advocates for disabled persons, the likely effect of the Amendments near term is an increase in the number of claims of disability discrimination and more success by the disabled in asserting their claims.

The following are highlights of the changes in the statute:

Major Life Activities Defined. The ADA defines disability as ” a physical or mental impairment that substantially limits one or more major life activities.”  Courts have labored to define “major life activities.”  The amendments now define such activities to include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.  The term also includes “the operation of a major bodily function,” including functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

Regarded As Having An Impairment. The ADA also defines “disabled” as being “regarded as” having a disability.  For example, an employer who discriminates against an employee who has recovered from cancer, may be liable for discrimination for “regarding” the employee as disabled.  The amendments broaden the scope of that language, providing that an employee is “regarded as” having a disability if the employee is subjected to discrimination because of an “actual or perceived physical or mental impairment” regardless of whether the disability or impairment limits or is perceived to limit  a major life activity.

Mitigating Measures No Longer Considered. The Amendments overturn the controversial decision of the Supreme Court in Sutton v. United Air Lines in which the Court held that in determining whether a person was disabled, courts could consider “mitigating measures” like assistive or prosthetic devices that mitigate the individual’s impairment. Under the new law, the determination of whether an impairment substantially limits a major life activity must be made without consideration of the “ameliorative effects of mitigating measures.”

Restrictions On Definitions Lifted.. In Toyota Motors Mfg. Ky, Inc. v. Williams, the Supreme Court narrowly construed the definition of a disability. The Court held, among other things, that to be “substantially limited” in performing manual tasks, one must have an impairment that prevents or severely restricts him or her from doing activities that are of “central importance to most people’s daily lives.” In addition, the Court noted, the impairment’s impact must be permanent or long-term. The new Amendments require that the term “substantially limits” must be interpreted consistent with the findings and purposes of the amending statute, and expressly rejects the narrow reading of the Court in Toyota Motors. An impairment that substantially limits one major life activity no longer must limit other major life activities in order to be considered a disability. In addition, an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

The statute directs the EEOC to promulgate new regulations consistent with the amended statute.

As with all employment statutes, there is bound to be some abuse in filing charges by unscrupulous employees. However, the amendments are more consistent with Congressional intent articulated in the legislative history of the original statute. The amended statute should not measurably increase the burden on employers, so long as employers have a specific plan or program for reasonably accommodating disabled persons.

In the coming weeks, I will elaborate on the impact of the amendments and keep you updated on how the courts apply them.</span?


In January 2008, President Bush signed the National Defense Authorization Act (NDAA), which, among other things, provided for FMLA (Family and Medical Leave Act) leave specifically for military families. New regulations from the Department of Labor implement these provisions and in additino make several significant modifications in the application of the FMLA. These new rules become effective January 16, 2009. Employers should prepare now to apply the new rules.

The following are a few of the highlights of the new provisions:

New Military Caregiver Leave. Eligible employees may now take up to 26 weeks of FMLA leave to care for a member of the Armed Forces (including members of the National Guard and Reserves as well as Regular Armed Forces) who has a serious injury or illness incurred “in the line of duty while on active duty” for which the military person is undergoing medical treatment, recuperation, or therapy. The leave is available to the spouse, child, parent or “next of kin” of the military personnel.

New “Qualifying Exigency Leave” for Some Military Families. In the event of certain defined “qualifying exigencies,” the spouse, child, or parent of a member of the National Guard or Reserves may take up to 12 weeks of leave, provided that the military member is on active duty, or has been notified of an impending call or order to active duty in support of a contingency operation. The qualifying exigencies include short notice deployment, certain child care and related activities, and rest and recuperation of the military member. (The rest and recuperation leave is limited to five days.)

Serious Health Condition. The meaning of “serious health condition” is clarified.

FMLA Notices. If you do not have an employee handbook or similar document distributed to all employees which explains FMLA leave to employees, you must give a general FMLA notice to each employee at the time of hiring that employee.

Designating FMLA Leave. Once you as an employer have sufficient information to determine that an employee’s leave is covered by the FM LA, you must notify the employee within 5 business days of his or her eligibility (this is an increase from the current 2 day requirement).

Scheduling Intermittent Leave. Employees who take intermittent leave for scheduled medical treatment, now have a statutory obligation to make a “reasonable effort” to schedule the leave so as not to unduly disrupt the employer’s business operation. Under the old regulations, employees were required only to “attempt” to schedule leave with the employer’s needs in mind.