Unfortunately, despite determining that the standard was “too high,” Congress provided little if any clarity to the phrase “substantially limits.” Rather, it directed the Equal Employment Opportunity Commission (EEOC) to revise its regulations (which essentially mirrored the U. S. Supreme Court's interpretation) to reflect Congress's intent to considerably lower the amount of restriction an impairment must have on a major life activity. Under this highly anticipated interpretation, conditions such as learning disabilities, carpal tunnel syndrome, severe back pain, and depression may now be considered disabilities–contrary to current case law. The prior ADA did not define the term “major life activities.” Rather, the EEOC (by regulation) and the courts (by case law) developed a list of examples. The ADAAA expands that term to epic proportions. The revised and non-exhaustive list of major life activities includes:

o Caring for oneself
o Hearing
o Performing manual tasks
o Seeing
o Speaking
o Breathing
o Learning
o Reading
o Concentrating
o Eating
o Sleeping
o Thinking
o Walking
o Communicating
o Standing
o Bending
o Lifting
o Working

The following major bodily functions also are included in that definition: normal cell growth; digestive bowel; bladder; brain; and the neurological, respiratory, circulatory, endocrine, reproductive and immune systems.

Practically speaking, the broadened definition of major life activities, coupled with the lowered substantially limits standard, makes it challenging to refute the notion that most, if not all, individuals arguably now can be considered disabled under the ADA.

Regarded as” claims
Under prior ADA case law, employees claiming they were “regarded as” disabled had to prove their employers regarded them as having impairments that substantially limited a major life activity, under the much more difficult U.S. Supreme Court standard. Under the new ADAAA, an individual simply has to prove she has been subjected to an adverse employment action (e.g., demotion, poor evaluation, discharge) 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. The focus now is on the employer's intent–without regard to the impairment's purported severity. Bottom line: It now is much easier for employees to assert “regarded as” claims.

The ADAAA does provide two limitations to this expansive “regarded as” disability claim. First, it does not apply to individuals with transitory (actual or expected duration of 6 months or less) or minor impairments. Second, employers are not required to provide reasonable accommodations to employees who are “regarded as” disabled but are not actually disabled. Mitigating measures don't matter
Casting aside time-honored law, the ADAAA states that mitigating measures (other than ordinary eyeglasses and contact lenses) shall not be considered in determining whether an impairment substantially limits a major life activity. Those measures include medications, medical supplies, prosthetics, hearing aids, and learned behavioral or adaptive modifications. Thus, if Jack has a mental impairment whose limitation essentially is neutralized or mitigated by medication, he still may be deemed to be substantially limited in a major life activity. The ADAAA also changed the way episodic conditions and conditions in remission are treated. Under prior ADA case law, if Jill had a debilitating seizure 10 years ago, but has not had one since then, she did not necessarily receive ADA protection because the court focused on the impairment as a whole, not just when it was at its worst. In other words, Jill is not “disabled” today because she currently is not suffering from seizures. That has changed. The ADAAA provides “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” Accordingly, employees with diabetes controlled by diet, exercise and medication, cancer in remission, or a seizure condition that has not surfaced for 10 years now may seek ADA “disability” protection. The ADAAA also had to confirm that “reverse discrimination” claims, in the disability context, are meritless and do not exist. Those claims arose when a non-disabled employee demanded the same reasonable accommodation that a disabled employee received. The record is clear. Employers do not have to provide reasonable accommodations to non-disabled employees simply because they provide them to disabled employees. Most ADA lawsuits likely will no longer focus on whether an individual fits under the definition of disability. That definitional bar has been lowered to an amazingly low level. Rather, attention will shift to the following inquiries:

o Can the employee perform the essential functions of the job?

o Did the employer engage in an interactive dialogue with the employee to determine whether he can perform those essential functions with or without a reasonable accommodation?

o Did the employer offer a reasonable accommodation?

o If not, can the employer prove an “undue hardship?”

o Did the employee's disability (e.g. “medical condition”) actually motivate the employer's adverse employment action?

Accordingly, employers should consider the following practices:

o Review and revise all employment policies that encompass employees with medical conditions (e.g., discrimination, harassment, light duty, leaves of absence, reasonable accommodations).

o Confirm that job descriptions are accurate and list the essential functions of the job.

o Train supervisors. Callous retorts about an employee's medical condition or a careless response to a reasonable accommodation request could spark an ADA claim.

o Establish and publicize a “reasonable accommodation” process that an employee (who believes she needs an adjustment to her job because of her medical condition) can use. Define the process. Identify the contact person. Document all efforts. Remember, it is an interactive dialogue–not a monologue.

Supervisors should consult with human resources before taking an adverse action against an employee with a medical condition, granting a “reasonable accommodation,” or concluding no “reasonable accommodation” is possible. Make sure all employment decisions are based on objective work performance or misconduct, not on assumptions or stereotypes. If reasonable accommodation requests to employees have been denied based on a determination that they did not satisfy the “disability” requirements of the ADA, reconsider whether the ADAAA changes that analysis. Good rule of thumb: If supervisors hear the words “restriction,” “limitation,” “medical condition,” “leave of absence,” or “accommodation,” they promptly should alert human resources.