KEY NEW PROVISIONS
• Mitigation Irrelevant. An individual can be deemed disabled regardless of the effectiveness of treatment, whether by medicine, prosthetics, accommodation, or any other intervention. The only exception is eye glasses/contact lenses.
• Major Life Activities Named. A “non-exclusive list” of major life activities is part of the law, including “working.” Thus, an inability to perform a single job may now be the basis for a required accommodation.
• Major Bodily Functions Included. The new law identifies a series of bodily functions, which if substantially impaired, constitute a disability. Many will have no relationship to work, but would require an accommodation. This provision assures that those with HIV and those who have or had cancer will be deemed disabled, without regard for their current state of health.
• No Cure. Under the amendments, any episodic disease or ailment in remission is a disability if, when manifest, it was a disability. This is so, regardless of the current state of health of the individual.
• Regarded As. An assertion of disability discrimination because of the misperception of the employer is actionable even if the employee is not regarded as having a disability under the ADA. No accommodation is required in a “regarded as” situation.
• Substantially Limits. Although the text of the law is unchanged, Congress instructs that this phrase is not to be interpreted narrowly, and requires that new regulations be drafted accordingly.
IMPLICATIONS
A new torrent of requests for accommodation is likely, as is a flood of litigation. Employers have little choice other than to be more rigorous in hiring and more thorough in keeping records. Presumably, an employee is still required to make his/her condition known to the employer before asserting discrimination – except in the still confusing “regarded as” situation.