December 31, 2008     Reported By: Josie Huang

What qualifies as a disability in this country?  Taking effect January 1st is an amended version of the Americans with Disabilities Act passed in 1990.  It's expected to broaden what is categorized as a disability, and as a result increase the number of people who are considered disabled and receive workplace accomodations and legal protections.

"It's pretty easy to accept that somebody who uses a wheelchair for mobility is disabled," says Elizabeth Depoy, professor of social work and disability studies at the University of Maine.  "But it's less clear that you are disabled say for example if you've got diabetes that impair you in life events because it's not observable."

Depoy says the amendment should help people who have had trouble proving a disability in the past.  "There are conditions around mental illness. There are conditions around chemical sensitivity -- that's a big one that people are really fighting to be classified under anti-discrimination protection -- because if you're sensitive to somebody's perfume and somebody wears deodorant, then what? There will be issues around, I think, learning disability. I think there are issues around cognitive disability."

Depoy says the law was amended in response to a a string of Supreme Court cases that eroded the scope of the ADA. One case involved a Toyota assembly line worker whose carpal tunnel syndrome was not determined to qualify. She says the broader definition of a disability should result in less debate in the courts over whether someone is truly disabled and therefore allow for more time to be spent on how to protect the individiual. The new law should also have major ramifications for employers - and not, in the opinion of their lawyers -- good ones.

"From the employer's standpoint, anything that adds greater litigation risk or more sort of regulatory overhead to the operation of the business adds expense and you know, you never want that,"  says Jim Erwin, who heads the employment group at Portland law firm Pierce Atwood. He says that employers could see an increased demand for workplace accommodations and requests for extended leave.

Employers, he says, will also bump up against a change to the law that allows people to claim they have been discriminated against for a disability, even if the disability does not limit a "major life activity" such as working, or caring for oneself. He cited an allergy or a limp as possible examples of this kind of disability. "I think what employers will do is they will just be much more cautious taking adverse employment action against employees who have impairments, they'll tolerate sub-par performance or unwanted workplace behavior for longer with certain employees, because they don't want to face the prospect of litgiation over why they terminated someone, for example."

Under the amended law, employers have to consider a person disabled even if they have the assistance of devices such as hearing aids or prosthetics. Glasses and contact lenses are exceptions to the rule.  Maine has its own definition of disability that up to this point has been more liberal than the federal definition. But Jim Erwin says that the amended ADA law appears to now have greater breadth than the state's.

As to how many more people in Maine would qualify as disabled under the amended ADA law, experts say it's too early to know.