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Based on several new amendments to the Americans with Disabilities Act (ADA), the statute has been reborn – it offers vastly expanded coverage to a wide variety of employee physical and mental impairments and will require employers to focus on creating and offering reasonable accommodations to individuals with disabilities. On January 1, 2009, the ADA Amendments Act of 2008 (ADAAA) will become effective and, in large part, it removes an employer’s common defense that the individual’s particular impairment does not constitute a “disability” under the ADA.
The ADAAA overturns United States Supreme Court precedent that applied a strict definition of “disability” and limited protection for certain individuals with physical and mental impairments, including individuals with cancer, diabetes, epilepsy, heart disease, or bipolar disorder. The ADAAA retains the ADA’s definition of “disability” as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. Nevertheless, the ADAAA broadens the disability definition and clarifies that the ADA is intended to protect anyone who faces discrimination on the basis of disability, whether the disability is actual or perceived. Employees can now much more easily satisfy the definition of “disabled”.
The ADAAA is also “employee-friendly” because it provides that employees who experience discrimination based on a mere perception of impairment—regardless of whether the individual has an actual disability or whether the perception is that the impairment substantially limits a major life activity—are now protected under the ADA. Moreover, the ADAAA provides that employers and courts can no longer consider mitigating measures, such as medication, prosthetics, and assistive technology in determining whether an individual has a disability.
Ultimately, the ADAAA will greatly impact employer hiring, counseling, discipline, and employment termination practices and procedures. Employers must become familiar with the ADAAA, train its supervisors, and take precautions to comply with its newly expanded scope. If you have any questions about the ADA or require additional information regarding how the ADAAA can affect your workplace, please contact your Haynes and Boone Labor and Employment attorney for assistance.