EEOC Issues Final Regulations Implementing The ADAAA

Originally published on the Employer's Law Blog

On March 25, 2011, the Equal Employment Opportunity Commission ("EEOC") published the Final Regulations ("Regulations") implementing the Americans With Disabilities Act Amendments Act of 2008 ("ADAAA"). In September 2008, Congress enacted the ADAAA in a bipartisan effort to respond to several recent Supreme Court decisions that limited the scope of the Americans With Disabilities Act ("ADA"). The ADAA became effective January 1, 2009.

The Regulations do not change the definition of "disability" set forth in the ADA, but they change the interpretation of the term. "Disability" continues to be defined as a physical or mental impairment that substantially limits one or more major life activities; a record of such an impairment; or being regarded as having such an impairment. The Regulations emphasize, however, that the definition of "disability" should be interpreted broadly to include a wider range of individuals.

We set forth below some of the highlights from the Regulations.

When Does an Impairment Substantially Limit a Major Life Activity?

The Regulations loosen the standard for determining when a physical or mental impairment substantially limits a major life activity and include rules of construction for determining if an individual is substantially limited in performing a major life activity. These rules include:

• "Substantially limits" requires a lower functional limitation than previously required under the ADA.
• "Substantially limits" should be interpreted broadly in favor of expansive coverage.
• Ameliorative effects of mitigating measures (except for ordinary eyeglasses or contacts) are not considered in the determination of whether an impairment substantially limits a major life activity.
• An impairment that is episodic or in remission may be considered a disability if the impairment would substantially limit a major life activity when active.
• Scientific, medical, or statistical analysis is not required.
• An impairment need only substantially limit one major life activity to qualify as a disability.
• Effects of an impairment lasting fewer than six months can still be considered substantially limiting in certain circumstances.
• Determining whether a person is disabled under the ADA should not require extensive analysis because the focus should be on whether discrimination occurred not whether the individual is disabled.

What Constitutes a Major Life Activity?

The Regulations also expand the definition of "major life activities" to include "major bodily functions" and include a non-exhaustive list of such "major life activities" and "major bodily functions." Some examples of major life activities include: caring for oneself, seeing, hearing, sleeping, walking, standing, lifting, communicating, and interacting with others. Some examples of "major bodily functions" include: functions of the immune system, special sense organs, skin, cell growth, digestive, neurological, brain, respiratory, and cardiovascular functions.

Although the Regulations do not address whether working constitutes a major life activity, the EEOC advises that (under the broader interpretation of disability in the ADAAA) impairments that substantially limit an employee's ability to work will almost always impair another major life activity.

When Do Specific Impairments Meet the Definition of Disability?

The Regulations favor an individualized assessment to determine whether an impairment substantially limits a major life activity. However, the Regulations list specific impairments that could "easily" constitute a qualifying disability, including: deafness, blindness, an intellectual disability that limits brain function, missing limbs, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV, multiple sclerosis, muscular dystrophy, and bipolar disorder.

When Is Someone "Regarded As" Disabled?

The Regulations revise the definition of "regarded as" to no longer require an employee to prove that the employer perceived him or her to be substantially limited in a major life activity. The employee need only establish that the employer took an adverse action based on a belief that the employee suffered from an impairment, regardless of whether the employer perceived that the impairment substantially limited a major life activity. The employer has a defense if it can establish it objectively believed the impairment was both transitory and minor.

Further, the Regulations clarify that employees who assert only a "regarded as" disabled claim are not entitled to a reasonable accommodation.

What Is the Impact on Employers?

As we wait to see how courts will interpret the Regulations, it is clear that employers will likely face an increase in disability discrimination cases under the ADAAA as it will be much easier to establish that an employee is disabled under the law. The EEOC reported that it has already seen an increase in disability claims filed during 2010. Employers should focus their attention on engaging in a meaningful interactive process with employees who request an accommodation and consult with counsel to ensure compliance with the law.

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