Practical Solutions • Workplace Success 

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The ADA Amendments Act of 2008

Accommodation and Compliance Series
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Preface 

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Updated 05/24/11. 
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JAN Bulletin: ADAAA

TABLE OF CONTENTS 

I. Background 

II. Overall Purpose 

III. Definition of Disability 

A. Basic Three-Part Definition is the Same 

B. Definition of Impairment is the Same 

C. Major Life Activities Expanded to Include Bodily Functions 

D. Substantially Limits, Nine Rules to Follow 

1. A Lot More Individuals Will Be Substantially Limited 

2. Comparison is to Most People in the General Population 

3. Assessing Whether Individual is Substantially Limited Should Be Quick 

4. Disability is Still Determined on a Case-By-Case Basis 

5. Scientific, Medical, or Statistical Evidence Usually Not Required 

6. Mitigating Measures Will Not Be Considered 

7. Episodic or in Remission, Limitations Will Be Considered As if Active 

8. Only One Major Life Activity Needs to be Substantially Limited 

9. Six Month Time Frame Does Not Apply 

E. Predictable Assessments 

F. Use of Condition, Manner, and Duration 

G. Record of a Disability 

H. Regarded As Is Very Broad, No Substantially Limits Requirement 

IV. Reasonable Accommodation 

V. Practical Tips 

A. Get Past the Definition of Disability 

B. Do Not Confuse the Definition of Disability and Accommodation 

C. Make Decisions That Are Job-Related and Consistent with Business Necessity 

D. Train Frontline Managers and Supervisors 

E. Document Actions and Decisions 
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I. BACKGROUND 

On January 1, 2009, the Americans with Disabilities Act Amendments Act (ADAAA) of 

2008 went into effect, making some major changes to the way the definition of disability 

was interpreted in the past. The changes apply to both the ADA and the Rehabilitation 

Act. Very few people argue that these changes were not needed – the courts had 

interpreted the definition of disability so narrowly that hardly anyone could meet it – but 

the challenge now is understanding what the changes are and who is covered as of 

January 1, 2009. 

In the ADAAA, Congress expressly gave the Equal Employment Opportunity 

Commission (EEOC) the authority to revise its regulations regarding the definition of 

disability to make them consistent with the Act's purpose. On March 25, 2011, the 

EEOC issued long-awaited final regulations. These regulations apply to title I of the 

ADA and section 501 of the Rehabilitation Act. These are effective as of May 24, 2011. 

The following provides an overview of the changes made to the definition of disability 

under the ADAAA and the regulations and accompanying interpretive guidance 

(appendix). 

II. OVERALL PURPOSE 

According to Congress, the ADAAA was passed "to carry out the ADA's objectives of 

providing 'a clear and comprehensive national mandate for the elimination of 

discrimination' by reinstating a broad scope of protection to be available under the 

ADA." In other words, the purpose of the original ADA was to eliminate discrimination. 

However, if hardly anyone was covered, then hardly anyone was actually being 

protected from discrimination. So, in the ADAAA, Congress fixed the definition of 

disability to cover more people and as a result, prevent more discrimination. That 

means that employers should no longer be focusing so much on who has a disability, 

but instead should be focusing on making accommodations and avoiding discrimination. 

III. DEFINITION OF DISABILITY 

A. Basic Three-Part Definition Is the Same 

 

Definition: Disability. 

(1) Disability.—The term "disability" means, with respect to an individual— 

(A) A physical or mental impairment that substantially limits one or more 

major life activities of such individual; 

 

(B) A record of such an impairment; or 

(C) Being regarded as having an impairment. 
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The ADAAA did not change the actual definition of disability – the definition is exactly 

the same as it was. What did change is the meaning of some of the words used in the 

definition and the way those words are to be applied to individuals. 

B. Definition of Impairment is the Same 

Definition: Impairment 

(1) Any physiological disorder or condition, cosmetic disfigurement, or 

anatomical loss affecting one or more body systems, such as 

neurological, musculoskeletal, special sense organs, respiratory 

(including speech organs), cardiovascular, reproductive, digestive, 

genitourinary, immune, circulatory, hemic, lymphatic, skin, and 

endocrine; or 

(2) Any mental or psychological disorder, such as an intellectual disability 

(formerly termed “mental retardation”), organic brain syndrome, 

emotional or mental illness, and specific learning disabilities. 

The ADAAA did not change the definition of impairment, but the ADAAA regulations did

add references to the immune system and the circulatory system because both are 

mentioned in the definition of “major bodily functions” and the EEOC wanted to be 

consistent. 

The term “impairment” does not include physical characteristics such as eye color, hair 

color, left-handedness, or height, weight, or muscle tone that are within “normal” range 

and are not the result of a physiological disorder; characteristic predisposition to illness 

or disease; pregnancy; common personality traits such as poor judgment or a quick 

temper where these are not symptoms of a mental or psychological disorder; or 

environmental, cultural, or economic disadvantages such as poverty, lack of education, 

or a prison record. 

C. Major Life Activities Expanded to Include Bodily Functions 

Definition: Major Life Activities 

 Major life activities include, but are not limited to: 

Caring for oneself, performing manual tasks, seeing, hearing, eating, 

sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, 

breathing, learning, reading, concentrating, thinking, communicating, 

interacting with others, and working; and 

The operation of a major bodily function, including functions of the immune 

system, special sense organs and skin; normal cell growth; and digestive, 
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genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, 

cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and 

reproductive functions. The operation of a major bodily function includes 

the operation of an individual organ within a body system. 

 

In the past, there was some debate over what activities were considered "major life 

activities" for ADA purposes, but one of the most confusing issues was whether 

someone with a medical condition that only affected internal functions would be 

covered. Conditions such as gastrointestinal disorders, cancer, sleep disorders, and 

heart disease often only affect bodily functions without producing any outward 

limitations and courts grappled with whether bodily functions were classified as major 

life activities. Now Congress has cleared up the confusion by specifically stating in the 

ADAAA that bodily functions are indeed major life activities. 

For example, a person with insulin-dependent diabetes will most likely be covered under 

the first part of the new definition of disability because endocrine system function is 

definitely considered a major life activity as of January 1, 2009. 

Note that the lists provided in the definition of major life activity are not exhaustive; they 

are just examples of some of the activities that can be considered. 

D. Substantially Limits, Nine Rules to Follow 

 

Definition: No Specific Definition, Follow Nine Rules of Construction. 

In the ADAAA, Congress expressly directed the EEOC to revise its regulations 

regarding the definition of substantially limits. In the past, the EEOC regulations had 

defined substantially limits as "significantly restricted," but Congress told the EEOC, that 

is too high a standard – go back and make it an easier standard to meet. In the final 

regulations, the EEOC did not specifically define substantially limits, but instead 

provided guidance referred to as “rules of construction.” 

The following rules of construction come from the EEOC’s final regulations, which are 

linked from http://www.eeoc.gov/laws/statutes/adaaa_info.cfm. 

1. A Lot More Individuals Will Be Substantially Limited 

The term “substantially limits” shall be construed broadly in favor of expansive 

coverage, to the maximum extent permitted by the terms of the ADA. “Substantially 

limits” is not meant to be a demanding standard. 

2. Comparison is to Most People in the General Population 

An impairment is a disability if it substantially limits the ability of an individual to 

perform a major life activity as compared to most people in the general population. 
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An impairment need not prevent, or significantly or severely restrict, the individual 

from performing a major life activity in order to be considered substantially limiting. 

The comparison to most people in the general population continues to mean a 

comparison to other people in the general population, not a comparison to those 

similarly situated. For example, the ability of an individual with an amputated limb to 

perform a major life activity is compared to other people in the general population, 

not to other amputees. 

3. Assessing Whether Individual is Substantially Limited Should Be Quick 

The primary focus under the ADA now should be whether employers have complied 

with their obligations and whether discrimination has occurred, not whether an 

individual's impairment substantially limits a major life activity. Accordingly, 

determining whether an impairment substantially limits a major life activity should be 

done quickly and should not demand extensive analysis. 

4. Disability is Still Determined on a Case-By-Case Basis 

The determination of whether an impairment substantially limits a major life activity 

still requires an individualized assessment. However, in making this assessment, 

substantially limits should be considered a much lower standard than it was prior to 

the ADAAA. Even with this lower standard, not every impairment will constitute a 

disability. 

5. Scientific, Medical, or Statistical Evidence Usually Not Required 

The comparison of an individual's performance of a major life activity to the 

performance of the same major life activity by most people in the general population 

usually will not require scientific, medical, or statistical analysis. Nothing prohibits the 

presentation of scientific, medical, or statistical evidence to make such a comparison 

where appropriate. 

6. Mitigating Measures Will Not Be Considered 

Definition: Mitigating Measures, Things Such As: 

(i) Medication, medical supplies, equipment, or appliances, low-vision 

devices (defined as devices that magnify, enhance, or otherwise augment a 

visual image, but not including ordinary eyeglasses or contact lenses), 

prosthetics including limbs and devices, hearing aid(s) and cochlear 

implant(s) or other implantable hearing devices, mobility devices, and 

oxygen therapy equipment and supplies; 

(ii) Use of assistive technology; 
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(iii) Reasonable accommodations or “auxiliary aids or services,” 

(iv) Learned behavioral or adaptive neurological modifications; or 

(v) Psychotherapy, behavioral therapy, or physical therapy.

Except: 

The ameliorative effects of the mitigating measures of ordinary eyeglasses 

or contact lenses shall be considered in determining whether an 

impairment substantially limits a major life activity." 

When determining whether a person is substantially limited in a major life activity, we 

ignore the beneficial effects of mitigating measures except ordinary eyeglasses or 

contact lens. In the past, the U.S. Supreme Court held the opposite, that you do not 

ignore mitigating measures. This holding resulted in a lot of people not being 

covered by the ADA - people with conditions such as epilepsy, diabetes, and mental 

illness, who controlled their symptoms through measures like medication, good diet, 

and regular sleep. Prior to the Supreme Court holding, few people questioned 

whether individuals with these types of conditions had disabilities, but after the 

holding it was clear that many of them did not, at least not under the ADA definition. 

The ADAAA rejected the Supreme Court's holding regarding the use of mitigating 

measures. 

For example, a person with epilepsy who takes medication to control her seizures 

will most likely be covered under the first part of the new definition of disability 

because we will consider what her limitations would be without her medication. 

And note that the ADAAA states that the ameliorative (i.e., beneficial) effects of 

mitigating measures are ignored; if the mitigating measure itself causes any 

limitations, then those will be considered. 

Evidence showing that an impairment would be substantially limiting without 

mitigating measures could include evidence of limitations that a person experienced 

prior to using a mitigating measure, evidence concerning the expected course of a 

particular disorder absent mitigating measures, or readily available and reliable 

information of other types. 

7. Episodic or in Remission, Limitations Will Be Considered As if Active 

In the past, a person whose condition was in remission or whose limitations came 

and went might not have been covered by the ADA, depending on how long that 

person's limitations were in an active state. This meant that a person with, for 

example, mental illness, might not be entitled to accommodations in the workplace 

when his condition was active because he did not meet the ADA's definition of 

disability. 
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Now the fact that the periods during which an episodic impairment is active and 

substantially limits a major life activity may be brief or occur infrequently is no longer 

relevant to determining whether the impairment substantially limits a major life 

activity. For example, a person with post-traumatic stress disorder who experiences 

intermittent flashbacks to traumatic events is substantially limited in brain function 

and thinking. 

Other examples of conditions that may be episodic or go into remission include 

epilepsy, multiple sclerosis, cancer, hypertension, diabetes, asthma, major 

depressive disorder, bipolar disorder, and schizophrenia. 

8. Only One Major Life Activity Needs to be Substantially Limited

The ADAAA states that an impairment need only substantially limit one major life 

activity to be considered a disability under the ADA. For example, an individual with 

diabetes is substantially limited in endocrine function and thus an individual with a 

disability under the first prong of the definition. He need not also show that he is 

substantially limited in eating to qualify for coverage under the first prong. An 

individual whose normal cell growth is substantially limited due to lung cancer need 

not also show that she is substantially limited in breathing or respiratory function. 

And an individual with HIV infection is substantially limited in the function of the 

immune system, and therefore is an individual with a disability without regard to 

whether his or her HIV infection substantially limits him or her in reproduction. 

9. Six Month Time Frame Does Not Apply

The six-month “transitory” part of the “transitory and minor” exception to “regarded 

as” coverage does not apply to the “actual disability” prong or the “record of” prong. 

The effects of an impairment lasting or expected to last fewer than six months can be 

substantially limiting within the meaning of this section. 

For example, if an individual has a back impairment that results in a 20-pound lifting 

restriction that lasts for several months, he is substantially limited in the major life 

activity of lifting, and therefore covered under the first prong of the definition of 

disability. At the same time, “[t]he duration of an impairment is one factor that is 

relevant in determining whether the impairment substantially limits a major life 

activity. Impairments that last only for a short period of time are typically not covered, 

although they may be covered if sufficiently severe.” 

E. Predictable Assessments 

Putting all this together, the individualized assessment of some kinds of impairments will 

virtually always result in a determination of disability. The following impairments are 

examples from the regulations of impairments that should be easily found to be 

substantial limiting a major life activity: 

 Deafness substantially limits hearing. 

 Blindness substantially limits seeing. 
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 An intellectual disability (formerly mental retardation) substantially limits brain 

function. 

 Partially or completely missing limbs or mobility impairments requiring the use 

of a wheelchair substantially limit musculoskeletal function. 

 Autism substantially limits brain function. 

 Cancer substantially limits normal cell growth. 

 Cerebral palsy substantially limits brain function. 

 Diabetes substantially limits endocrine function. 

 Epilepsy substantially limits neurological function. 

 Human Immunodeficiency Virus (HIV) infection substantially limits immune 

function. 

 Multiple sclerosis substantially limits neurological function. 

 Muscular dystrophy substantially limits neurological function. 

 Major depressive disorder, bipolar disorder, post-traumatic stress disorder, 

obsessive compulsive disorder, and schizophrenia substantially limit brain 

function. 

F. Condition, Manner, or Duration 

For conditions that are not so obviously disabilities, the EEOC regulations state that in 

determining whether an individual is substantially limited in a major life activity, it may 

be useful in appropriate cases to consider, as compared to most people in the general 

population, the condition under which the individual performs the major life activity; the 

manner in which the individual performs the major life activity; and/or the duration of 

time it takes the individual to perform the major life activity, or for which the individual 

can perform the major life activity. However, the regulations no longer include the 

additional list of “substantial limitation” factors contained in the previous version of the 

regulations (i.e., the nature and severity of the impairment, duration or expected 

duration of the impairment, and actual or expected permanent or long-term impact of or 

resulting from the impairment). 

Consideration of facts such as condition, manner, or duration may include, among other 

things, consideration of the difficulty, effort, or time required to perform a major life 

activity; pain experienced when performing a major life activity; the length of time a 

major life activity can be performed; and/or the way an impairment affects the operation 

of a major bodily function. 

G. Record of a Disability 

An individual has a record of a disability if the individual has a history of, or has been 

misclassified as having, a mental or physical impairment that substantially limits one or 

more major life activities. The terms “substantially limits” and “major life activity” under 

the record of prong of the definition of disability are the same terms used in the “actual 

disability” prong as described in C and D above. 
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An individual with a record of a substantially limiting impairment may be entitled, absent 

undue hardship, to a reasonable accommodation if needed and related to the past 

disability. For example, an employee with an impairment that previously limited, but no 

longer substantially limits, a major life activity may need leave or a schedule change to 

permit him or her to attend follow-up or “monitoring” appointments with a health care 

provider. 

H. Regarded As Is Very Broad, No Substantially Limits Requirement 

Definition: Regarded As. 

"(A) An individual meets the requirement of 'being regarded as having such 

an impairment' if the individual establishes that he or she has been 

subjected to an action prohibited under this Act because of an actual 

perceived physical or mental impairment whether or not the impairment 

limits or is perceived to limit a major life activity. 

(B) Regarded as does not apply to impairments that are transitory and 

minor. A transitory impairment is an impairment with an actual or expected 

duration of 6 months or less." 

The ADAAA makes regarded as coverage under the ADA very broad. To be covered, 

an individual only has to establish that an employer discriminated against him because 

of a medical condition, whether he actually has one or the employer just thought he did. 

He does not have to meet the substantially-limited-in-a-major-life activity standard. One 

exception under regarded as is that impairments that are transitory (lasting or expected 

to last 6 months or less) and minor, are not covered. Arguably, impairments that are 

transitory or minor, but not both, will be covered. 

For example, if an employer denies employment to a job applicant solely because the 

applicant has had back problems in the past, without looking at whether he can safely 

perform the job, the applicant will most likely be covered under the regarded as part of 

the definition. 

Congress broadened coverage under the regarded as part of the definition to help 

address the prejudice, antiquated attitudes, and the failure to remove societal and 

institutional barriers that still exist. 

IV. REASONABLE ACCOMMODATION 

The ADAAA did not change the definition of reasonable accommodation. However, the 

Act does clarify that only individuals who meet the first (actual disability) and second 

(record of a disability) parts of the definition are entitled to accommodations; individuals 

who only meet the third part (regarded as) are not entitled to accommodations. Even 

though the definition did not change, it is clear that with a broader definition of disability, 

more focus will be placed on providing reasonable accommodations. 
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Another thing to keep in mind is the flexibility built into the reasonable accommodation 

obligation under the ADA. For example: 

 employers can choose among effective accommodation options and do not 

always have to provide the requested accommodation, 

 employers do not have to provide accommodations that pose an undue hardship, 

 employers do not have to provide as reasonable accommodation personal use 

items needed in accomplishing daily activities both on and off the job, 

 employers do not have to make an accommodation for an individual who is not 

otherwise qualified for a position, and 

 employers do not have to remove essential functions, create new jobs, or lower 

productions standards as an accommodation. 

For more information, see Reasonable Accommodation and Undue Hardship under the 

ADA at http://www.eeoc.gov/policy/docs/accommodation.html 

V. PRACTICAL TIPS 

What does all this mean to employers? The following are some practical tips for 

applying the ADAAA in the workplace: 

A. Get Past the Definition of Disability

First and foremost, with the new, broader definition of disability, employers 

should no longer be spending a lot of time analyzing whether employees meet 

the definition of disability. Employers can still require medical documentation 

when an employee requests an accommodation and the disability and/or need 

for accommodation are not obvious, but the documentation related to 

determining whether someone has a disability should not be extensive. Instead, 

the focus should be on the accommodation, whether it is reasonable, whether it 

can be provided without an undue hardship, and whether there are other 

accommodations that can be considered. 

B. Do Not Confuse the Definition of Disability and Accommodation 

Remember that the definition of disability is an impairment that substantially limits 

at least one major life activity and the ADAAA has a list of things that are 

considered major life activities. This list includes things like sleeping; 

reproducing; eating; normal cell growth; and digestive, bowel, and bladder 

functioning. These major life activities are not normally things that employers 

relate to the workplace or job performance so the question many employers have 

is whether they have any obligation to accommodate employees who are 

substantially limited in any of these activities. The answer is yes. 
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And here is why. Once an employer establishes that an employee is substantially 

limited in any major life activity, then the employer has established that the 

employee has a disability and is entitled to an accommodation for any limitations 

associated with the disability. The accommodation does not have to be for the 

limitation that established disability, it can be for any limitation associated with 

the disability, whether substantial or not. 

For example, an employee has breast cancer and establishes that she has a 

disability by showing that she is substantially limited in the major life activity of 

normal cell growth. However, she needs an accommodation related to typing 

because she has some swelling in her right arm because of the treatment she is 

receiving for her cancer. Even though she is not substantially limited in the use of 

her arm and hand, she is still entitled to an accommodation for typing because 

the limitation is related to her disability. 

C. Make Decisions That Are Job-Related and Consistent with Business Necessity 

As mentioned previously, the ADAAA broadens the definition of disability and places the 

focus on the actions taken by employers. One problem employers can have is making 

assumptions or comments about employees' medical conditions, which could lead 

employees to believe that decisions were made on the basis of their real or perceived 

disabilities, even if that is not the case. To help avoid this problem, employers should 

focus on any performance or conduct problems that employees have and apply their 

policies in a uniform manner rather than assuming that a medical problem or disability is 

contributing to or causing the problem. In general, it is the employee's responsibility to 

let the employer know that a conduct or performance problem is disability-related and to 

request an accommodation to overcome the problem so there is usually no reason for 

an employer to bring up medical issues first. 

For more information, see The ADA: Applying Performance and Conduct Standards to 

Employees with Disabilities at http://www.eeoc.gov/facts/performance-conduct.html 

Also, when making decisions such as who to hire or promote, focus on qualifications for 

the job, not on perceptions about someone’s disability or need for accommodation. 

D. Train Frontline Supervisors and Managers 

No amount of preparation will be effective unless employers train their frontline 

managers and supervisors because the frontline usually has the most contact with 

employees on a day to day basis. If nothing else, employers should train their frontline 

to refrain from mentioning medical conditions unless relevant, to recognize 

accommodation requests, and to remember who to contact for assistance (many 

employers, as part of their accommodation procedures, appoint a responsible person to 

handle accommodation requests, keep confidential medical information, and help avoid 

discriminatory employment decisions). 
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Another important reason to train frontline supervisors and manages is to help reduce 

retaliation claims. The frontline needs to understand that making negative or derogatory 

remarks in response to an accommodation request can be considered retaliation. 

E. Document Actions and Decisions 

Because the focus of the ADA has shifted away from the definition of disability and 

toward whether employers complied with their obligations, documentation of actions and 

decisions can be very important if an employee alleges discrimination. In the past, 

many such allegations were never looked at because the employee could not meet the 

narrow definition of disability. Now, especially with the broad coverage under the 

regarded as part of the definition, most cases will hinge on whether an employer 

discriminated. Therefore, employers should keep accurate records because it can be 

difficult to remember what happened without good recordkeeping and written records 

are generally considered more reliable than memory alone. 

Another important aspect of documentation is effective communication with employees. 

Many problems occur because employers do not let employees know, for example, how 

their performance needs to improve, the status of their accommodation requests, or why 

an accommodation request was denied. Employees need to be informed so they can 

have the opportunity to address performance problems or suggest alternative 

accommodation options. 

Additional Resources 

For more information about the ADAAA, see EEOC guidance at 

http://www.eeoc.gov/laws/statutes/adaaa_info.cfm
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This document was developed by the Job Accommodation Network, funded by a 

contract agreement from the U.S. Department of Labor, Office of Disability Employment 

Policy (DOL079RP20426). The opinions expressed herein do not necessarily reflect the 

position or policy of the U.S. Department of Labor. Nor does mention of trade names, 

commercial products, or organizations imply endorsement by the U.S. Department of 

Labor.