The ADA Amendments Act of 2008 (ADAAA), which became effective January 1, 2009, dramatically expanded the Americans with Disabilities Act’s (ADA) protections to individuals with disabilities. The biggest difference is that far more people are now considered disabled under the ADA than under the previous version of the law. As a result, it is more likely than ever that an employee who has a serious health condition under the FMLA will also be considered disabled under the ADA and entitled to that law’s protections.

In general, the ADA requires an employee to show that he or she suffers from a physical or mental impairment that substantially limits at least one major life activity. Under the original ADA (and court decisions interpreting it), that was a very difficult standard to meet. However, the ADAAA significantly changed the analysis of what it means to be disabled in the following ways:

• There is no longer any clear requirement that an impairment be permanent or even last very long in order for it to be considered a disability.
• In determining the extent to which an impairment limits a major life activity, employers are to disregard the effect of mitigating measures, such as medication to control diabetes or a hearing aid to help the hearing impaired. This is true even if the mitigating measures completely eliminate the effect of the underlying impairment. (The only exception is for ordinary eyeglasses and contact lenses.)
• Similarly, impairments that are in remission are to be considered disabilities if they would substantially limit a major life activity while active.
• The definition of a “major life activity” has been significantly expanded to include not only nearly every physical or mental function you can imagine, but also to include major bodily functions. So if an impairment such as cirrhosis substantially limits a person’s liver functions, that person will be considered disabled, regardless of whether his ability to function is impaired or not.

In addition, the Equal Employment Opportunity Commission’s proposed ADA regulations list a variety of impairments that will automatically be considered disabilities, regardless of their effect on an employee’s daily life.

Overlap of serious health conditions and disabilities. It is not hard to see that the ADAAA’s expansion of what it means to be disabled resulted in more overlap between conditions that will be considered both serious health conditions under the FMLA and disabilities under the ADA. Anytime an employee requests leave for his or her own serious health condition, you should consider whether the employee may also be disabled and entitled to a reasonable accommodation under the ADA.

Effect of the ADAAA on leave to care for adult children. The FMLA allows eligible employees to take leave when they are needed to care for adult children who suffer from a serious health condition, but only if the child is “incapable of caring for himself or herself because of a physical or mental disability.” The FMLA specifically explains that whether an adult child is disabled for the purpose of this provision is governed by the ADA’s definition of disability.

In the past, the main limitation on such leave was that the child had to be disabled under the meaning of the ADA, and that was a difficult standard to meet. Now, in light of the ADAAA’s changes, the existence of a disability is far less difficult to establish, and far more employees are likely to qualify for leave to care for an adult child.

Employers should review requests for FMLA leave to care for an adult child with a great deal of care. Do not dismiss a leave request out of hand merely because the child does not have an obvious or traditional disability. We recommend applying the same standards as you would in determining whether an employee is disabled. Similarly, don’t jump to conclusions that a child is not disabled based on the employee’s characterization of the impairment. A pregnant daughter may be neither disabled nor incapable of self-care, but a pregnant daughter who suffers from high blood pressure and is put on bed rest may be both disabled and incapable of self-care.

Of course, the mere existence of a disability does not automatically mean that the employee is needed to care for the child. Once it has been established, don’t forget to examine whether (1) the adult child is also incapable of self-care; and (2) the employee is needed to care for the child.