The Equal Employment Opportunity Commission (“EEOC”) has finally released Final Regulations implementing and interpreting the ADA Amendments Act of 2008 (“ADAAA”). The Final Regulations reiterate the intent of the ADAAA: to make it easier for disabled individuals to come within the ADA’s protection. These new regulations take effect on May 24, 2011.
When the ADAAA took effect on January 1, 2009, it greatly expanded the definition of disability and made it clear that the focus in disability discrimination cases was to be on the employer and whether it engaged in the interactive process or otherwise complied with its obligations under the ADA and not whether the individual in question was disabled in accordance with the law.
The Final Regulations further implement this intent in the following ways:
Nine rules of construction must be applied in determining whether an impairment substantially limits a major life activity.
1. Whether an individual has a substantial limitation should not demand extensive analysis;
2. “Substantially limits” shall “be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA;
3. “Substantially limits” shall require a lower degree of functional limitation than previously required before the ADAAA;
4. The individual’s ability to perform a major life activity should be compared to that of most people in the general population;
5. Impairments do not have to “prevent” or “severely or significantly restrict” the individual from performing a major life activity in order to qualify as substantially limiting;
6. Mitigating measures, other than ordinary eyeglasses or contact lenses, must not be considered in determining whether an impairment substantially limits a major life activity;
7. Impairments lasting less than six months can qualify as “substantially limiting;”
8. Impairments that are episodic or in remission are considered to be substantially limiting if they would be when active; and
9. Impairments need to only substantially limit one major life activity.
Although the Final Regulations note that disabilities are to be determined based on an individualized basis, the EEOC recognizes that there are some types of impairments that virtually always will be deemed disabilities, such as diabetes, HIV infection, epilepsy, cancer, and multiple sclerosis.
The concepts of major life activity and substantially limit are not relevant in evaluating whether an individual was regarded as having a disability. An employer regards an individual as disabled if it takes a prohibited action, such as termination, against the individual because of an actual or perceived impairment. A defense to the regarded as disability claim is that the impairment was transitory and minor.
What does this mean for you? The reality of the ADAAA and the Final Regulations implementing it is that many more individuals will now be entitled to reasonable accommodations. Rather than making determinations as to whether or not the employee is legally disabled, employers will instead need to engage in an interactive dialogue with the employee to discuss accommodation options. Managers should be trained in recognizing a request or need for accommodation so that request and/or need will be communicated to the appropriate individual who handles such requests.
Additional information on the EEOC’s new regulations can be located at the following links: