Enhanced Protections For Disabled Employees

In 2008, the American's with Disabilities Act (the "ADA") was amended to provide broader coverage to individuals under the ADA and to eliminate the narrow, extensive analysis previously permitted in determining whether an individual's impairment is a disability under the ADA.

The American's with Disabilities Act Amendments Act of 2008 (the "ADAAA") mandates a liberal construction, eliminates the requirement of mitigating measures to defeat coverage, and strengthens coverage under the "regarded as" prong.

With respect to an individual, disability means (i) physical or mental impairment that substantially limits one or more major life activities; (ii) a record of such an impairment; or (iii) being regarded as having an impairment.

For purposes of the ADAAA, major life activities 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, and working.

The ADAAA also significantly expanded "regarded as" claims of disability to provide that "an individual meets the requirement of being regarded as having an impairment if the individual establishes that he or she has been subjected to an action prohibited under the ADAAA because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity." Under the ADAAA, an impairment need not be substantially limiting, nor need it be perceived as such in order to be the basis of a "regarded as" claim. The inquiry is now limited to the existence of an impairment and whether the employer took a prohibited action on the basis of that impairment.

The ADAAA also prohibits medical examinations and inquiries except under certain specific circumstances. In addition, the ADAAA contemplates that a determination regarding reasonable and necessary accommodations will be an interactive process between the employer and employee.

In fact, reasonable accommodations under the ADAAA can include part-time or modified work schedules.

Briefly put, the ADAAA has greatly expanded protections from discrimination against disabled employees (and those employees regarded as disabled) in the workplace.