The Americans with Disabilities Act Amendments of 2008 ("Amendments Act") was signed into law late last year. The 2008 Amendment contains strong language expanding the scope of the ADA. Consequently, employers should expect to see increases in requests for accommodations and in discrimination claims.

In the past 10 years, the ADAhas been interpreted by the courts very narrowly, limiting the conditions that qualify as disabilities and thus limiting the number of employees to whom an accommodation might be owed and the number of employees who can successfully assert disability discrimination claims. The 2008 Amendment says its purpose is to reject the narrow interpretation and reinstate "a broad scope of protection to be available under the ADA." The Amendments Act affirms that "it is the intent of Congress that the primary object of attention in a case brought under the ADAshould be whether [employers] have complied with their obligations." The 2008 Amendment adds a new section to the ADA, instructing the courts to interpret the definition of disability "in favor of broad coverage of individuals… to the maximum extent permitted by the terms of this Act."

The 2008 Amendment also adds an illustrative list of "major life activities" to the statute. Under the current version of the ADA, a condition must "substantially limit" a major life activity to be a protected disability, but the phrase "major life activities" is not defined. The courts have construed that term to mean significant components of everyday living, such as breathing, walking and caring for oneself. The 2008 Amendment mirrors the interpretation given by most courts but adds bending and lifting as major life activities, which will prompt an increase in claims that back pain and back-related limitations are disabilities.

In addition to the ADA Amendments Act, the EEOC on September 3, 2008, issued new guidance addressing how the ADA applies to a variety of performance and conduct issues in the workplace. The guidance reviews the definitions of "qualified individual with a disability" and "reasonable accommodation." The ADA protects "qualified" persons with a disability — i.e., those disabled persons who can perform the essential functions of  the job with or without a reasonable accommodation. The ADA generally does not limit the employer’s right to define essential functions of the job or to evaluate employees according to consistently applied standards governing performance and conduct. Most significant, the new guidance affirms that employers have the right to apply the same performance and conduct standards to all employees, including those with disabilities. However, the guidance also stresses that employers may have to provide a reasonable accommodation to help a disabled employee meet those standards.

To prepare for the possible increase in disability accommodation requests and discrimination claims, employers should review their policies and procedures to ensure that (1) there is a defined process for employees to request accommodations; (2) managers and supervisors understand the company’s obligation to discuss a requested accommodation and to evaluate whether it can be provided without undue hardship; and (3) the human resources department is advised of accommodation requests and is an active participant in the discussion and analysis, so that a defensible decision is reached and there is a record of the company’s analysis.