The new amendments to the ADA are now reflected in the ADA trainings in HR Classroom, http://www.hrclassroom.com. The new law, entitled the ADA Amendments Act of 2008 overturns several landmark Supreme Court decisions narrowly interpreting the definition of "disability" and will make disposing of ADA cases prior to trial more challenging for employers. The changes to the ADA take effect on January 1, 2009. The changes include:

1. The ADAAA changes the standard for determining discrimination under the ADA by prohibiting discrimination against a qualified individual on the basis of disability. This is a change from the previous law which prohibited discrimination against a qualified individual with a disability because of the disability of such individual. The intent of this change is to spend less time on whether a person is disabled by broadening the definition of disability. However, it is the employee's burden to establish that he or she is a qualified individual with a physical or mental impairment who can perform the essential functions of the job.

2. ADAAA amends the definition of "disability" and "substantially limiting" to be construed in favor of broad coverage of individuals under the Act, and to the maximum extent permitted by the Act. Impairments that are episodic or in remission must be considered in their active state; however, impairments that are minor or transitory are not protected disabilities under federal law (you still must consider state and local law). In addition, the ADAAA provides that an impairment need only substantially limit one major life activity to be considered a disability. The EEOC will be issuing regulations to further define "substantially limits".

3. ADAAA expands the definition of disability to include many more major life activities and creates a new category of major bodily functions. The ADAAA describes a non-exhaustive list of "major life activities", including "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working." Major life activities now also include the operation of major bodily functions, such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.

4. The ADAAA prohibits consideration of mitigating circumstances when determining whether an impairment is a disability. Mitigating circumstances include medication, medical supplies, equipment, or appliances. Prescription lenses are excluded, but may be considered when assessing whether an individual is substantially limited in a major life activity.

5. Under the ADAAA an individual need not establish that he or she is substantially limited in a major life activity to be protected under the "regarded as" having an impairment provision of the ADA. The ADAAA also rejects the Supreme Court opinion that an employer must believe that an individual has a substantially limiting impairment in order to be liable under the "regarded as" section of the Act. However, the ADAAA makes clear that employers are not required to provide a reasonable accommodation to individuals regarded as disabled.

It is important that employers interact with applicants and employees to determine reasonable accommodations so the individual can perform the essential functions of the job.