Under Attack: Courts and Legislatures Chip Away at Employers’ Ability to Enter Into and Enforce Noncompetition Agreements

ADA Amendments Act of 2008 Restores and Broadens Protections of the ADA
In response to two U.S. Supreme Court decisions which limited
certain protections under the Americans with Disabilities Act (“ADA”),
the law was amended on September 11, 2008. The amendments
make several key changes to the ADA, and will become effective on
January 1, 2009:

• The term “disability” continues to mean: (a) a physical or mental
impairment that substantially limits a major life activity; (b) a record of
such an impairment; or (c) being regarded as having such an impairment.
However, the new law makes clear that “transitory and minor”
impairments are not protected. An impairment is transitory if it has an
actual or expected duration of six months or less.

• The terms “disability” and “substantially limits” are to be interpreted

• Employers may no longer consider mitigating measures in
determining whether an individual has a disability, with the exception
of use of ordinary eyeglasses and contact lenses.

• An impairment that is episodic or in remission is a disability if
the impairment would substantially limit a major life activity when the
impairment is active.

• The new law adds to the definition of “major life activity” to
include the operation of a “major bodily function,” such as digestive,
bowel, bladder, neurological, brain, respiratory, circulatory, endocrine,
and reproductive functions. Currently, the term “major life activities”
includes activities of everyday living such as caring for oneself,
performing manual tasks, seeing, hearing, eating, sleeping, walking,
standing, lifting, bending, speaking, breathing, learning, reading, concentrating,
thinking, communicating and working.

• A person will be “regarded as having an impairment” if the
person can show that he or she has been subjected to an action
prohibited by the ADA because of an actual or perceived physical
or mental impairment regardless of whether the impairment limits a
major life activity. However, employers will not be required to provide
a reasonable accommodation to individuals who are only “regarded
as” disabled and are not actually disabled.

We anticipate that the Equal Employment Opportunity Commission
will update ADA regulations due to these amendments, which
we are watching closely. Between now and January 1, 2009,
employers should update their ADA policies and train supervisors
and management employees to be prepared to comply with the new
law. We welcome the opportunity to assist you in implementing the
ADA Amendments Act of 2008.

If you have questions or would like further information regarding this
E-Newsletter, please contact Randall L. Duncan, Chair of our Closely
Held Business Team, at (503) 417-6010, and we would be pleased to
accommodate your request.

Randall L. Duncan
Portland Offi ce: (503) 242-0000
Direct Line: (503) 417-6010
Toll Free: (800) 315-4172
[email protected]

Nothing in this communication creates or is intended to create an attorney-client relationship with you, constitutes the provision of legal advice, or creates any legal duty to you. If you are seeking legal advice, you should first contact a member of the Closely Held Business Team with the understanding that any attorney-client relationship would be subsequently established by a specific written agreement with Harrang Long Gary Rudnick P.C. To maintain confidentiality, you should not forward any unsolicited information you deem to be confidential until after an attorney-client relationship has been established.

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