On Jan. 1, 2009, the Americans with Disabilities Act (ADA) was significantly and purposefully amended to broaden the number of employees who can claim to be disabled and seek ADA protection. In an unprecedented move, Congress discarded a series of U.S. Supreme Court decisions that effectively restricted ADA protection to a limited number of employees who truly were “disabled” (as defined under the ADA) instead of bestowing protection on virtually anyone with a physical or mental problem. Not any more. Under the ADA Amendments Act of 2008 (ADAAA), more individuals will likely be deemed disabled and will qualify for reasonable accommodations and protections from alleged discrimination. Additionally, because of the watered-down interpretation of disability, more lawsuits likely will be filed and covered employers (15 or more employees) will need to re-assess their reasonable accommodation practices. These changes will directly affect not only your customers’ operations, but your own agency’s human resources practices as well.

Ironically, the ADA’s base definition of disability was untouched. An individual still must demonstrate he: a) has a physical or mental impairment that substantially limits one or more of his major life activities; b) has a record of such an impairment; or c) is regarded as having an impairment. The ADAAA critically alters the way the three crucial terms highlighted above within that definition will be interpreted, and establishes new standards that must be considered. If a qualified employee or applicant has a disability under A or B above, then the employer has a duty to accommodate that individual’s actual disability if it would enable him to perform the essential functions of the job or permit him to enjoy equal employment opportunity. To determine whether a reasonable accommodation exists, or whether any accommodation would cause an undue hardship, the employer must participate in an interactive dialogue with the individual.

“Substantially limits” and “major life activities” Under the prior ADA, the term “substantially limited” in a major life activity meant “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.” This interpretation was a formidable barrier for many ADA plaintiffs to hurdle. Consequently, the ADAAA rejected it.

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