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At Last! The EEOC Publishes Final ADA Amendments Act Regulations

by Martin Salcedo, Esq. - The Human Equation on 4/14/2011
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Enacted on September 25, 2008, the ADA Amendments Act (ADAAA) directed the Equal Employment Opportunity Commission (EEOC) to amend its regulations to reflect the changes made to the Americans with Disabilities Act by the ADAAA. Though the ADAAA became effective on January 1, 2009, the final regulations were not published by the EEOC until March 25, 2011. They will not become effective until May 24, 2011.

By its own terms, the ADAAA was enacted to reverse the United States Supreme Court's gradual, yet consequential, narrowing of the protections originally intended by the ADA. Thus, the ADAAA overturned several Supreme Court decisions that interpreted the ADA, and the definition of "disability," too narrowly. Since these narrow interpretations effectively denied ADA protection to individuals believed by Congress to be otherwise entitled, the ADAAA provides that the definition of disability should be interpreted in favor of broad coverage of individuals.

The goal of expanding the umbrella of protection afforded by the ADA is reflected in the EEOC's final regulations. While the ADA's definition of "disability" remains the same, the regulations implement the ADAAA's significant changes regarding how terms should be interpreted.

Consistent with Congress' intent, the regulations adopt "rules of construction" designed to establish predictable, consistent, and workable standards when determining whether an individual suffers from a disability by virtue of being substantially limited in performing a major life activity. The nine rules of construction included in the regulations, which are derived directly from the statute and legislative history, include the following:

  • The term "substantially limits" requires a lower degree of functional limitation than the standard previously applied by the courts. While not every impairment will constitute a disability under the ADA, the impairment does not need to prevent, severely, or significantly restrict a major life activity to be considered "substantially limiting."
  • The term "substantially limits" is to be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA.
  • The determination of whether an impairment substantially limits a major life activity continues to require an individualized assessment.
  • With one exception ("ordinary eyeglasses or contact lenses"), determining whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures, such as medication or hearing aids.
  • Impairments that are episodic or in remission, qualify as a disability if they would substantially limit a major life activity when active.
  • The determination of disability should not require extensive analysis.

According to the EEOC, application of the regulation's nine rules of construction will result in some impairments virtually always qualifying as a disability under the ADA. Examples of such impairments found in the regulations include: deafness, blindness, intellectual disability (formerly known as mental retardation), partially or completely missing limbs, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia.

Under the ADAAA, the question of whether an individual's impairment constitutes a disability under the ADA "should not demand extensive analysis." However, the suggestion in the regulations that individuals suffering from specific impairments appear to automatically qualify for protection under the ADA is significant. Employers have historically been very successful in arguing that an individual is ineligible for protection under the ADA because he or she does not suffer from an ADA-qualifying disability. Thus, in cases involving one of these impairments, the regulations give the impression that what was once a vigorously debated element of an ADA case may no longer be relevant.

Consistent with the ADAAA's provisions, the regulations also make it easier for individuals to establish coverage under the "regarded as" part of the definition of "disability." This was done to reverse judicial decisions that made it difficult for individuals to establish coverage under the "regarded as" prong. Now the focus for establishing coverage is on how a person has been treated because of a physical or mental impairment (that is not transitory and minor), rather than on what an employer may have believed about the nature of the person's impairment. However, an individual must have an actual disability or a record of disability to qualify for a reasonable accommodation.

Precisely how courts will interpret and apply the ADAAA's final regulations, including those discussed in this article, remains to be seen. However, those losing their cases at the trial level, be it employer or employee, are likely to test their outcome in the nation's appellate courts. While some courts may easily embrace the expansiveness required by the ADAAA, the long history of decisions typically favoring employers may lead to a reflexive application of the more restrictive ADA of yesterday. Needless to say, employers and employees alike are very interested to see how things develop.

The expanded scope and applicability required by the ADAAA should put employers on notice that their disability-related policies and procedures must be evaluated, and they will likely need to be updated. According to the EEOC, the number of labor force participants whose coverage under the ADA has been clarified by the ADAAA is approximately 38.4 million. As a result, there is a greater chance that covered employers failing to adapt to the amended-ADA may be forced to endure a costly lesson.

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Categories: 2011, Human Resources

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