The ADA Amendments Act (ADAAA) became law on January 1, 2009, but in reviewing some recently reported decisions, you would not know it. That is because almost all courts have held that the ADAAA does not apply retroactively. Thus, many recent court decisions have been decided under the ADA as it was constituted prior to the amendments.

For instance, in Williams v. Brunswick County Board of Education, No. 08 CV 140-D, (E.D.N.C. July 2, 2010), the court held that an employee with diabetes did not have a covered disability. However, the court clearly noted that it was deciding the case on the ADA prior to the amendments. Similarly, in Boitnott v. Corning, Inc., No. 06 CV 0330 (W.D.Va. June 15, 2010), the court ruled that a plant worker with leukemia was not entitled to a reasonable accommodation because the employee was not disabled within the meaning of the ADA. Again, the court noted that it was deciding the case under the ADA before the amendments were enacted. Thus, until newer cases make their way through the court process, courts will continue to decide disability cases under the old ADA definitions. 

One of the main purposes of the ADAAA was to broaden the definition of a disability. The new definition greatly increases the number of medical conditions that are considered covered disabilities. For example, under the ADAAA, other than individuals who use eyeglasses or contact lenses to correct eyesight, employers must treat employees who take corrective mitigating measures as “disabled”. Thus, employers may no longer take into account such corrective measures as hearing aids or use of insulin in determining whether or not an employee has a disability. Similarly, a person with an impairment that is episodic or in remission is considered disabled if the condition would limit a major life activity when active.

Also, the proposed regulations issued after the enactment of the ADAAA list many medical and psychological impairments that would either presumptively meet or might meet the definition of a disability. By defining the term “disability” broadly, EEOC Commissioners believe that ADA cases will now focus on whether there was unlawful discrimination, rather than on whether individuals have disabilities which are covered by the law. The proposed regulations also make it easier for an employee to demonstrate that the employee is unable to perform a major life activity such as working.

For example, in Horgan v. Simmons, No. 09 CV 6796 (N.D.Ill. April 12, 2010), the court noted that the ADAAA made significant changes in how the ADA is to be interpreted. In this case, the employer fired the employee one day after the employee disclosed that he was HIV-positive. In denying the employer’s motion to dismiss, the court noted that HIV status is one of the impairments that presumptively meets the definition of a disability and “it is entirely plausible – particularly under the amended ADA – that [the employee’s] HIV positive status substantially limits a major life activity: the function of the immune system.”

Thus, as cases subject to the ADAAA come to the fore, a court’s attention will shift away from arguments about whether or not an employee’s impairment is a disability, to whether or not the employer engaged in the interactive process and offered the employee a reasonable accommodation. Moreover, in addressing these issues in the workplace, it is likely that employers will have to focus more on the interactive process with an employee than they have in the past and may have to be more accommodating in providing a reasonable accommodation to a disabled employee.