The ADAAA removes the original findings in the ADA regarding the number of Americans with disabilities (43 million) and the finding that individuals with disabilities are “a discrete and insular minority.” By changing the language, Congress has enlarged the class of individuals the ADA is intended to protect.

While the ADAAA retains the ADA’s definition of “disability,” it provides that the term “shall be construed in favor of broad coverage of individuals . . . to the maximum extent permitted by the terms of ADA.” The ADAAA also clarifies that “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” The ADAAA’s congressional findings and purposes state the EEOC’s existing regulations interpreting the term “substantially limits” are “inconsistent with congressional intent, by expressing too high a standard” and express “Congress’ expectation that the EEOC will revise that portion of its current regulations that defines the term ‘substantially limits’ as ‘significantly restricted’ to be consistent with the ADA.”

At this time it is unclear what the EEOC’s revised standard will be. However, given the ADAAA’s congressional findings “that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis,” whether an individual’s impairment rises to the level of a “disability” under the ADA will certainly be an easier standard to meet.

The ADAAA prevents courts and employers from considering mitigating measures (medication, prosthetics, and assistive technology) the individual may be using when determining whether the individual has a disability. This represents a major change and will require employers to be particularly thoughtful when fashioning reasonable accommodations. The only exceptions are ordinary eyeglasses and contact lenses.

The ADAAA lowers the standard to prove an employer discriminated against an individual whom it “regarded as” having a disability. Traditionally, individuals claiming they were “regarded as” having disabilities had to prove the employer had made a mistake in regarding them as having impairments that substantially limited a major life activity. The ADAAA will now hold an employer liable under a “regarded as” theory if individuals can prove discrimination because of an actual or perceived physical or mental impairment, whether or not the impairment actually limits or is perceived to limit a major life activity.

There is some good news for employers on the “regarded as” front. The ADAAA clarifies that “regarded as” claims cannot be based on transitory and minor impairments where the impairment is expected to last less than six months. Also, employers are not required to provide a reasonable accommodation to individuals who are regarded as disabled.

So how does this impact the employer? More requests for accommodation (and more lawsuits) should be expected. Litigation under the ADA will no doubt become more complex as the emphasis shifts away from whether plaintiffs are disabled and toward questions of whether employers have complied with the law. While employers have traditionally prevailed in more than 90% of all ADA lawsuits, this was principally due to the difficulty plaintiffs had in proving they were “disabled” under the statute. With this largely removed, employers should be prepared to litigate more challenging issues, such as the scope and meaning of “reasonable accommodation,” “undue hardship” and “essential job functions” to establish compliance with ADA obligations.

Some other emerging ADA areas will likely include: whether specific performance or conduct standards are "job-related and consistent with business necessity"; what workplace risks satisfy the ADA’s “direct threat” standard; and standards for determining whether an employer has sufficiently explored “reassignment” as a reasonable accommodation. Employers are also likely to see a rise in “regarded as” claims in light of the ADAAA’s lower standard.

There are definitely some “next steps” for employers. It is time to review existing procedures for ADA compliance at every stage, including hiring, medical testing, accommodation, leave, and termination. Employers must be prepared to inject flexibility into their policies and practices.

Employers should train supervisors on individualized assessments and develop protocols or guidelines for responding to workplace limitations posed by injuries or illnesses. In addition, employers need to review job descriptions (they are frequently the starting point for individualized assessment). Employers also should consider implementing a formalized process for addressing reasonable accommodation requests or reviewing reasonable accommodation procedures already in place. Many employers who have tackled “individualized assessment” often rely on forms, internal guidelines, or template letters to help facilitate communication with individuals with disabilities and their healthcare providers. These steps and practices will become indispensable as an organization goes forward.