ADA AMENDMENTS

Congress has amended the Americans with Disabilities Act ("ADA") effective January 1, 2009. The amendments emphasize that the definition of "disability" should be interpreted broadly. The amended ADA will:

• expand the non-exhaustive list of "major life activities" to include: walking (which was previously recognized by the Equal Employment Opportunity Commission as a "major life activity"), as well as reading, bending and communicating;
• expand the non-exhaustive list of major bodily functions to include functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive systems;
• mandate that mitigating measures other than "ordinary eyeglasses or contact lenses" cannot be considered in determining whether an individual is disabled;
• clarify that an episodic impairment (such as epilepsy or multiple sclerosis), or a condition in remission (such as cancer), will be considered a disability if it would substantially limit a major life activity when it flares up or otherwise becomes active;
• provide that an individual subject to an adverse employment action (such as a decision not to hire that individual) because of an actual or perceived impairment will meet the "regarded as" definition of disability, unless the impairment is transitory and minor; and
• provide that an individual whose only protected characteristic is being "regarded as" disabled is not entitled to reasonable accommodation.

  The amendments also direct the Equal Employment Opportunity Commission to revise its regulations that define the term "substantially limits."

  Employers in California must comply with both the ADA and the Fair Employment and Housing Act ("FEHA").