Federal lawmakers, believing that recent Supreme Court decisions have taken a narrow interpretation of the term "disability" under the Americans with Disabilities Act, recently used legislation to set the record straight, and President Bush this fall signed into law the Americans with Disabilities Act Amendments Act of 2008.

Architects behind the law report that they wanted to reestablish "a broad scope of protection" under ADA in light of recent decisions by the Supreme Court.

Overall, the new amendments don't alter the core definition of a disability, which means a physical or mental impairment that significantly restricts one or more major life activities, such as seeing, hearing, sitting, standing and sleeping.

The new rules, effective Jan. 1, 2009, call for a much broader definition of the term disability that will encompass more individuals. For example, whether an impairment restricts a major life activity is to be determined regardless of the availability of measures that can improve performance and functioning, such as medication, equipment or prosthetics.

"The ADA Amendments Act is a major victory for employers, the disability community and the American workforce," says China Miner Gorman, chief operating officer of the Society for Human Resource Management.

"The new law is a true compromise measure, protecting those individuals most in need and addressing court decisions that have limited the effectiveness of the original ADA. It is a prime example of Congress putting aside differences to pass needed legislation," she adds.

Labor analysts say employers should understand that, even though a disability is a prerequisite to acquiring relief under the ADA, no violation is committed when a group health plan offers equitable benefits to participants with disabilities and individuals without disabilities.

Even if there are differences in health benefits, there is no legal violation if the differences are not due to a disability-based distinction or if benefits are provided through a bona fide benefit plan that is not a subterfuge to evade the ADA's purposes.

Many disability discrimination cases filed under ADA against employers never made it to the discrimination issue because the first issue the courts have to decide is whether a disability exists, says Debbie Leung, an attorney at the Groom Group, a Washington, D.C.-based law firm. "If you have no disability, then we are not going to examine whether you were discriminated against," explains Leung.

The Supreme Court viewed what constituted a disability under ADA as vague and overly board, says John Kemp, executive director and general counsel of the U.S. Business Leadership Network, an organization that focuses on disability issues.

"With the new amendments, there is a shift away from proving that you are a member of a protected disability class. That is the overarching shift, which is going in the right direction," Kemp explains.

Pursuant to the new amendments, employers do not get the opportunity to question whether an individual is disabled and eligible to bring the lawsuit, thus stopping the person before he or she gets to the courthouse. Under the new rules, the plaintiff asserts that he or she is a member of a disability class and that the organization has committed disability discrimination.

While the courts can still determine whether an impairment restricts a major life activity, under the new rules they may no longer factor in the availability of measures that improve a disabled person's performance or functioning, such as medication, equipment or prosthetics.

The Supreme Court interpreted ADA in such a way that a person with artificial limbs who wore prosthetics may not have been protected under the law, because he or she has been able to overcome certain limitations associated with the disability, explains Kemp. The same is true for people with epilepsy who are keeping the condition under control with medication.

"That was not the intention of ADA. It would be wrong because either a person has a disability, or the perception of other people about the disability may cause bias," Kemp says. "ADA intended that people with medical conditions that rose to the level of disability were supposed to be covered under the law."

He further explains that, despite the new rules on a major disability law, successful employers realize that it is not in their best interest to limit their applicant or promotion pools. Smart employers are looking for top talent, regardless of disability. "They get the fact that they need to be looking for talent, and talent lies with people with disabilities and others," says Kemp.

Whether the new amendments affect employers' HR and workplace policies depends on how those policies are drafted. For example, if the employee handbook says the company does not discriminate based on a disability, then that does not change because that has always been the law, says Leung.

If the company, however, has any specific language in internal and HR policies on what is a disability and what is not a disability, then those policies will probably have to change.

With the new amendments, there is a larger range of conditions and impairments protected under ADA. As a result, there is some concern that a number of lawsuits will reflect new disabilities that are not covered under the law as a disability.

In addition, under the ADA, there is an exception written into the law for employee benefit plans.

For example, an employee benefit plan can make a disability-based distinction as long as the plan meets certain requirements and is not a subterfuge to evade the purposes of the ADA. It is known as the insurance safe harbor clause, which allows employers not to offer coverage related to certain disabilities. Some observers believe that, because the new amendments allow more disabilities to come into play, there could be more claims against benefit plans regarding a disability-based distinction.

Once you have a disability-based distinction, someone could say that this disability-based distinction is not really part of a regular plan design, but is really discrimination against disabled people.

EEOC weighs in on ADA amendments

The amendments retain the ADA's basic 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. However, it changes the way that these statutory terms should be interpreted in several ways. Most significantly, the Equal Employment Opportunity Commission confirms that the Amendments Act:

» Directs the EEOC to revise that portion of its regulations defining the term "substantially limits."

» Expands the definition of "major life activities" by including two nonexhaustive lists:

The first list includes many activities that the EEOC has recognized (such as walking) as well as activities that EEOC has not specifically recognized (including reading, bending and communicating). The second list includes major bodily functions ("functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions").

» States that mitigating measures other than "ordinary eyeglasses or contact lenses" shall not be considered in assessing whether an individual has a disability.

» Clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

» Provides that an individual subjected to an action prohibited by ADA (such as failure to hire) because of an actual or perceived impairment will meet the "regarded as" definition of disability, unless the impairment is transitory and minor.

» Provides that individuals covered only under the "regarded as" prong are not entitled to reasonable accommodation.

» Emphasizes that the definition of "disability" should be interpreted broadly.

Source: EEOC