On September 25, 2008, President Bush signed the Americans with Disabilities Act Amendments Act of 2008 (ADAAA).  The ADAAA broadens the definition of what constitutes a “disability” and rejects several U.S. Supreme Court decisions as well as several EEOC ADA regulations.  The ADAAA brings the ADA closer to California’s Fair Employment and Housing Act’s view on disabilities.

Some of the most major changes include:

• Whether someone is considered “disabled” under the Act is now determined without regard to mitigating measures.  Prior U.S. Supreme Court decisions held that if a person’s condition is mitigated with the use of devices or medication then the person may not qualify as “disabled.”  The Supreme Court’s ruling had the potential for inappropriate results, such as a person with no lower arm not qualifying as “disabled” because the person’s prosthesis mitigates the limitations imposed by his medical condition.  The ADAAA makes it clear that whether a person has a disability is determined without regard to such mitigating measures, with the exception that “ordinary eyeglasses or contact lenses” may be considered.
• The definition of “major life activities” is expanded by the inclusion of two non-exhaustive lists.  The first list includes many activities that the EEOC previously recognized (e.g., walking) as well as some that were not previously recognized (e.g., reading, bending, and communicating).  The second list includes major bodily functions such as “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”  This effectively increases the types and numbers of conditions that will qualify as “disabilities.”
• An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
  
• Individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation.

These changes will likely require employers to make accommodations under the ADA where previously they were not required to do so.  Most employers in California were already required to make the accommodations under the state’s Fair Employment and Housing Act, but the broader definitions under the ADA may still impact California employers.  For example, EEOC guidelines interpreting the ADA contain fairly thorough “interactive process” requirement whereby employers and employees must interact to discover what, if any, reasonable accommodation will enable the employee to perform the essential functions of the job.  California’s FEHA has the same requirement but the process is not necessarily as detailed.  Instead, California simply refers to the ADA’s interactive process requirement.  Because more employees will be covered under the ADA, there will likely be an increase in cases interpreting the “interactive process” requirements, which will trickle down into the State’s interpretation.

For more information regarding the ADA, the FEHA, or what an employer should do when an employee requires an accommodation, please feel free to contact us directly.  You can also view a chart that compares the ADA, the ADAAA and the FEHA (originally prepared by the Fair Employment and Housing Commission).