The final Disability Act regulations employers have been waiting for were released by the Equal Employment Opportunity Commission on March 24, 2011. More than two years after the ADA Amendments Act (ADAAA) was signed into law by President Bush in September of 2008, and went into effect January 1, 2009, the EEOC has issued regulations implementing the ADAAA.
Although the ADAAA and the final regulations keep the ADA’s definition of the term “disability” as a physical or mental impairment that “substantially limits” one or more “major life activities”, a record (or past history) of such an impairment, or being “regarded as” having a disability, the law and implementing regulations make major changes in how those terms are interpreted.
The ADAAA overturned several Supreme Court decisions where Congress believed the Court had interpreted the term “disability” too narrowly. The ADAAA defines “disability” in favor of broad coverage. The final regulations set forth "rules of construction" which the EEOC says are designed to help employers in determining if an individual is substantially limited in performing a major life activity.
Under the rules of construction, the term “substantially limits” is to be construed broadly and now requires a lower degree of functional limitation than the standard previously applied. According to the regulations, an impairment does not need to prevent or significantly restrict a major life activity to be considered substantially limiting. However, not every impairment will constitute a disability. This determination still requires an individual assessment, as it did prior to the ADAAA.
The regulations also provide that, with the exception of ordinary eye glasses or contact lenses--the determination of whether an impairment substantially limits a major life activity shall be made without regard to "mitigating measures" such as medication or assistive devices like hearing aides.
One of the other major changes to the regulations is the “regarded as” prong of the disability analysis. The regulations make it clear that an employee proceeding under the “regarded as” prong of the disability definition is only required to show that the employer regarded him as disabled and discriminated against him based on this perception. The concepts of “substantially limits” and “major life activities” are now irrelevant to the “regarded as” analysis. The regulations also clarify that an employee must be covered under either (1) the actual disability or (2) the record of disability prong to qualify for a reasonable accommodation.
Although the final rule does not provide a list of impairments that would “consistently,” “sometimes,” or “usually not” be disabilities, as the EEOC’s previous Notice of Proposed Rule Making did, the regulations do provide examples of impairments that “should easily be included to be disabilities” including epilepsy, diabetes, cancer, HIV infection and bi-polar disorder. However, the regulations make clear that not every impairment will constitute a disability and that an individual assessment should be performed for each instance.
The ADAAA regulations are expansive. Employers should consult with legal counsel for assistance in analyzing disability claims. To learn more, contact a member of Taft’s Labor and Employment Group.