Due to the changes in the federal employment discrimination law, which covers businesses with 15 or more employees, a greater number of employees with impairments – or perceived impairments – will now be afforded job protection.

In the past, courts and the Equal Employment Opportunity Commission have been left to interpret provisions of the Americans with Disabilities Act. But Congress decided that those interpretations made it too difficult to be protected under ADA. An amendment to the Americans with Disabilities Act, effective Jan. 1, provides some specific guidance on what the act means.

It clarifies that a disability exists when any of the following activities are substantially limited by impairment: caring for one’s self; performing manual tasks; seeing; hearing; eating; sleeping; walking; standing; lifting; bending; speaking; breathing; learning; reading; concentrating; thinking; communicating; and working.

In determining what is a disability, the amendment says the courts and the EEOC should not consider any mitigating factors, other than ordinary eyeglasses or contacts lenses. For example, a person with diabetes may be disabled under the ADA even if, with proper insulin doses, he or she has no performance problems. A person with Parkinson’s disease or high blood pressure will still, in all likelihood, be considered disabled, even if that person can perform the job effectively with proper medication.

Employers will have to reasonably accommodate people with these expanded definitions of a disability. But that does not mean an employee can go off his or her medications and then claim that the employer has the obligation to restructure the work condition. However, it is conceivable that the employer may have to consider accommodating when prescription drugs are unavailable or have adverse side effects.

Also problematic for employers is the need to consider whether a poor performing employee can effectively argue that he is disabled because of an impairment substantially limiting his concentrating or thinking. Is the employee just a slacker, or does he have attention deficit disorder?

An employee is also protected as disabled, even though he might not be, if his employer regards him as such. The amendment now merely requires that the employer perceives that the employee has an impairment that is not minor and will last for more than six months. For example, if a day-care provider was fired because of a raspy voice that the employer mistook for difficulty communicating, the employee may have a claim under the ADA.

The amendment also expressly requires the EEOC to advise employers that more employees will now be protected by the ADA and to keep that in mind when facing employment decisions. Employers will be asked to contact a lawyer when considering taking an adverse employment action against an employee who may have a physical or mental impairment.