President Bush on Sept. 25 signed the ADA Amendments Act of 2008—the most significant change in the nation’s disabilities rights law since the original ADA was enacted in 1990.

The act takes effect on Jan. 1, 2009. Like the original ADA, it applies to employers with 15 or more workers, including part-time and temporary employees.

In the most general terms, the new ADA rules will require a thorough review of all your policies and practices involving employment of people with disabilities. Getting down to particulars, prepare to rewrite those policies, amend any ADA-related forms you use, adapt the interactive processes you use to identify reasonable accommodations and take a fresh look at how you implement accommodations.

Where the law came from

Congress passed the the ADA Amendments Act of 2008 largely in reaction to a series of court decisions over the last 10 years that critics said severely undercut the ADA’s original purpose: protecting the rights of disabled workers.

Disabilities rights groups complained that courts generally applied too narrow a definition of what constituted a disability under the ADA. As a result, they said, people with disabilities were often deemed either “not disabled enough” to gain ADA protection or too disabled to work at all, regardless of any accommodations an employer might be able to provide.

Thus, advocates argued, the ADA in practice strayed significantly from the broad protections Congress intended in the early 1990s.

With the ADA Amendments Act of 2008, Congress made sure there could be little judicial confusion about the law's intent. Using language clearly aimed at telling courts—and employers—how to interpret the law, legislators wrote that the ADA was to be applied “to the maximum extent permitted.”

In other words, when there is a question about whose side is right—the employer’s or the employee’s—the benefit of the doubt now goes to the employee.

“The Americans with Disabilities Act guaranteed that workers with disabilities would be judged on their merits and not on an employer’s prejudices. But court rulings since the law’s enactment have dramatically limited the ability of people with disabilities to seek justice under the law,” Rep. George Miller, D-Calif., chairman of the House Education and Labor Committee, said in a statement shortly after the House approved the new law. “Today we make it absolutely clear that the Americans with Disabilities Act protects anyone who faces discrimination on the basis of a disability.”

Upcoming changes

Here’s what the new law does:

Requires a broad reading of “disability.” Employers and courts must be generous when determining whether someone is disabled. As a practical matter, more employees will qualify as disabled under the new law. Courts are now more likely to side with employees who sue employers for ADA violations.

Redefines “major life activity.” The original ADA was vague about what constitutes a disability, casting it in terms of a condition that substantially limits a major life activity. No more.

The new law is specific about what those major life activities are. They “include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”

In addition, the law lists bodily functions that might lead to limitations on major life activities, “including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”

Expect more ADA claims as a result. Conditions that aren’t obvious may well qualify as disabilities under these definitions.

Takes mitigating measures out of the ADA picture. Employers and courts making decisions about whether someone is disabled must ignore any mitigating measures an employee might use to improve his or her condition. Thus medications, artificial limbs and mobility aids such as wheelchairs or canes can’t be considered when determining whether the ADA applies.

What that means: Employers clearly cannot make assumptions about someone’s ability to do a job based on any corrective measures an employee may use. Naturally, they can’t discriminate on that basis either.

Note: Glasses or contact lenses don’t count. Congress recognized that without a vision correction exemption, everyone lacking 20/20 vision would be disabled under the terms of the new ADA.

Other elements of the law

The ADA Amendments Act of 2008 also:

• Makes it easier for an employee to make the case that he or she was wrongly “regarded as disabled” and thus suffered discrimination.
• Directs the EEOC to draft regulations defining “substantial limitation.” Some courts, including the U.S. Supreme Court, did not believe the original ADA gave that authority to the EEOC.
• Clarifies that conditions that are “episodic or in remission” can qualify as ADA disabilities.

Advice: Make an appointment now to discuss the new ADA with your employment law attorney. You’ll likely have to take a fresh look at all your hiring, promotion and termination processes as a result of the new law. Be prepared to beef up policies addressing workplace discrimination. And get ready to apply the law’s new standards to your interactive accommodations process.