Amending the landmark Americans with Disabilities Act (ADA), the ADA Amendments Act of 2008 (ADAAA) took effect on January 1, 2009 and reverses several Supreme Court rulings that had previously narrowed the ADA’s scope of protection.

Congress, believing that the Supreme Court’s rulings ran contrary to the intent of the ADA’s drafters, passed the ADAAA in an effort to revise the Supreme Court’s rulings and expand coverage.

While the EEOC has yet to issue any regulations on the ADAAA, and the Courts have not been able to provide any interpretative guidance, one thing that is certain is the impact these changes will have on the franchise industry. Only through a true understanding of the ADAAA, as well as applicable local and state laws, can franchisors and franchisees best position themselves to deal with these significant legislative changes.

The ADAAA did not change the ADA’s three-pronged definition of "disability": a physical or mental impairment that substantially limits one or more major life activities of such individual; a record of such impairment; or being regarded as having such an impairment. It did however change the meaning of some of the words used in this definition and the way such words are to be applied to individuals seeking protection. Those changes dramatically expand the number of persons who will be "disabled" within the meaning of the ADA. Congress wrote into the ADAAA that "[t]he definition of disability shall be construed in favor of broad coverage . . ." The Supreme Court’s decisions had narrowly interpreted the meaning of "substantially limits" under the ADA’s first prong, stating that the alleged impairment must "prevent or severely restrict" the employee in the performance of a major life activity.

As a result, employees were required to exhibit an extremely high level of impairment in order to activate the ADA’s protections. The new provisions of the ADAAA, however, loosen this high standard, expressly providing that "substantially limits" be more broadly interpreted to reject the previously constricting rulings from the federal courts addressing this issue.

The legislation even empowers the Equal Employment Opportunity Commission (Title I), the Secretary of Transportation (Title II) and the Attorney General (Title III) to re-issue regulations compliant with ADAAA’s "disability" definition and to further elaborate on the meaning of the new interpretation.

The new legislation also revises the ADA’s definition of "disability" by shedding further light on what constitutes a "major life activity." While the Supreme Court has narrowly interpreted the term "major life activity" in the past, the ADAAA instructs courts to interpret its provisions more expansively.

In fact, the ADAAA specifically enumerates a non-exhaustive laundry list of major life activities ranging from working to reading. Additionally, the ADAAA further provides that the operation of any "major bodily function" is also considered a "major life activity." A "major bodily function" includes "neurological, brain, respiratory, circulatory, endocrine, and reproductive functions."

The ADAAA eases the burden for individuals with disabilities to be covered under this legislation because it essentially broadens the definition of disability to include significantly more major life activities, as well as fashions a new subcategory of major bodily functions. Furthermore, the ADAAA’s Disability Rules of Construction plainly state that an impairment need only substantially limit one major life activity to be considered a disability.

Following the prior Supreme Court rulings, an employee was not disabled if the impairment suffered could be corrected through the use of mitigating measures so that it no longer substantially limited a major life activity. However, the ADAAA’s provisions effectively reverse those rulings, providing that the ameliorative effects of mitigating measures are to be ignored in the determination of whether an individual is disabled. For example, in the past, an individual with insulin-dependent diabetes would likely not have been determined to be disabled because the use of insulin was a mitigating measure that prevented any substantial limitation in a major life activity. However, now, if a court analyzes whether this same individual is disabled, the use of insulin as a mitigating measure will not be considered. Of course, as with every piece of legislation, Congress did carve out one exception to this rule, allowing that ordinary eyeglasses and contact lenses can be taken into consideration when determining whether someone is disabled.

In addition to the changes made to the ADA’s definition of "disability," the ADAAA contains further provisions that will most certainly have an impact on franchisors and franchisees.

The ADAAA clarifies that an impairment that is episodic or in remission is still a "disability" under the ADA if it would substantially limit a major life activity when active.

For example, an individual with cancer that is in remission would now likely be disabled because the cancer, when active, would almost certainly substantially limit a major life activity.

Additionally, the ADAAA revises the definition of "regarded as" to read that an applicant or employee is "regarded as" disabled if he or she is subject to an action not permitted by the ADA (i.e., termination) based on an impairment that is not transitory and minor (less that six months in expected or actual duration).

The ADAAA further provides that individuals covered only under the "regarded as" prong are not entitled to reasonable accommodation. This means that only individuals who meet the actual disability or record of disability elements of the "disabled" definition are entitled to reasonable accommodations.

While the ADAAA should garner the attention of both franchisors and franchisees, the amendments should not fundamentally change the way franchisors and franchisees have addressed ADA issues in the past.

Importantly, the responsibilities and potential for liability for ADAAA compliance will hinge on how the parties have structured the franchise relationship. Nevertheless, as any necessary revisions to business operations will likely take place at the franchisee level, franchisors, in the interest of efficiency and good business, may want to take an active role in the immediate future to ensure that the proper steps are being taken by their franchisees during the early stages of this untested law.

First, franchisors and franchisees should review their respective policies and procedures that may be impacted by the ADAAA and make the necessary adjustments where needed. A review of job descriptions to determine the essential functions of the jobs is now vital to ascertain what functions are the core responsibilities that may require accommodations.

Franchisors and franchisees should also consider their current disability-related training programs to ensure that management-level employees and front-line supervisors are aware of the ADAAA’s changes.

Additionally, as the ADAAA will greatly expand the number of individuals covered under the ADA’s umbrella, franchisors and franchisees should place great emphasis on the reasonable accommodation process, in particular, the interactive dialogue between the employer and employee addressing potential accommodations which would allow the employee to perform the major functions of his or her job.

Of course, proper documentation related to each of these areas is always an invaluable asset when faced with an EEOC charge or a lawsuit.