President Bush signed the Americans with Disabilities Amendments Act of 2008 (S. 3406) into law with little fanfare on September 25th of this year. The revised Act, which becomes effective January 1, 2009, represents a large expansion of the ADA. And, despite multiple endorsements, the Act had been decried by many human resource professionals and attorneys knowledgeable in the area as another unneeded and expensive obstacle to employers.

The key provisions of the Act are as follows:

1. The definition of “disability” is to be construed as broadly as permitted by the terms of the Act
2. The amendment defines the crucial phrase “substantially limits” as “materially restricts” (this is intended to be an easier standard for a disabled person to meet.)
3. It expands the definition of “major life activities” to include “major bodily functions” and defines such functions as the immune system, normal cell growth, digestive, neurological, brain and reproductive functions
4. Perhaps most significantly, in response to the United States Supreme Court decision in Sutton v. United Airlines, the Act provides that the determination of whether or not an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as medication, prosthetics, hearing aids, learned behavioral or adaptive neurological modifications, etc… . Prior to the amendment, a person who suffered from epilepsy but who experienced no symptoms or seizures while on medication would probably not have qualified as “disabled”. However, under the amendments an employer will be forced to act as if this employee has stopped taking his medication when making the determination whether or not he qualifies as a disabled person under the ADA.

The Act does contain at least one provision favorable to employers. Now, one suffering from a minor and transitory impairment cannot assert a claim that they are “regarded as having an impairment.” A transitory impairment is one that lasts or is expected to last for six months or less. This should decrease the number of individuals who qualify to argue that they were “regarded” as disabled persons.

In total, this Act represents a significant expansion of the ADA and will almost certainly result in increased administrative and legal expenses for most employers. Since the Act becomes effective January 1, 2009, employers need to move quickly to make themselves familiar with the intricacies of this new law.