EEOC Releases Final Regulations on ADAAA. 

April 2011

The Equal Employment Opportunity Commission (“EEOC”) has released the long-awaited regulations addressing the ADA Amendments Act (ADAAA). The ADAAA, which became effective on January 1, 2009, prohibits discrimination “against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”

The ADAAA retains the ADA’s basic definition of ‘‘disability” as “a physical or mental impairment that substantially limits one or more major life activities of [an] individual; a record of such an impairment; or being regarded as having such an impairment . . . .” However, the amendments and regulations alter the way that these statutory terms should be interpreted, instructing that the definition of disability is to be “construed in favor of broad coverage to the maximum extent permitted . . . and the determination of whether an individual has a disability should not demand extensive analysis.” 

The regulations provide some examples of what might constitute “Major Life Activities.” These include “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working,” although this list is not all inclusive. Thus, an individual “substantially limited” in carrying out any of these, and other, tasks will be deemed disabled. 

To aid in the evaluation of whether coverage under the ADAAA applies, the EEOC provided several “rules of construction.” Because the amended law makes it much easier for employees to establish the existence of a disability than the prior law had, the rules suggest that the primary inquiry in disability cases will be the employer’s efforts to comply with the law.

The “rules of construction” provide, in relevant part, the following:
1. Whether a person is “substantially limited” in a major life activity is to be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. 
2. Whether an impairment is a disability will not generally require medical “proof.” Instead, if it substantially limits the ability of an individual to perform a major life activity as compared to the general population, it will likely rise to the level of a disability. In fact, while not every impairment will be deemed a disability, it does not have to actually prevent or even severely restrict the person from performing a major life activity to be considered “substantially limiting.”
3. The determination of whether an impairment substantially limits a major life activity is to be made without regard to whether the condition is improved by mitigating measures (except in the case of ordinary eyeglasses or contact lenses).
4. An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. 
5. The effects of an impairment expected to last fewer than six months can be substantially limiting.

Additionally, the final regulations explain that some impairments will virtually always constitute a disability. Examples provided of these ailments include epilepsy, diabetes, cancer, HIV infection, deafness, blindness, intellectual disabilities, partially or completely missing limbs, mobility impairments requiring the use of a wheelchair, autism, cerebral palsy, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.

The regulations also expand coverage under the “regarded as” prong of the disability law. The ADA and its amendments provide protection to employees that are subjected to adverse action because they are “regarded as” disabled by their employer. The regulations clarify that employees do not have to show that they are regarded as being substantially limited in a major life activity, but only to establish that they were subjected to a prohibited action because of a perceived physical or mental impairment.

From a practical perspective, employers should be aware that many more individuals will be covered by the ADAAA. Thus, it is critical that employers handle inquiries regarding reasonable accommodations in a thorough manner and take the necessary steps to ensure they have complied with the requirements of the regulations. Employers should also carefully review any decisions to take adverse action against an employee because of an inability to perform based on an injury, illness, or ailment.