EEOC Announces New Regulations Interpreting the ADAAA

On January 1, 2009, the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) became effective. The new law amended the Americans with Disabilities Act (ADA), making a number of significant changes to the definition of "disability." The ADAAA emphasizes that the definition of disability should be construed in favor of broad coverage to the maximum extent permitted by the terms of the ADA, and "generally shall not require extensive analysis." The EEOC issued a Notice of Proposed Rulemaking on September 23, 2009, and the final regulations were approved and published in the Federal Register on March 25, 2011. The guidance from the EEOC follows the Congressional goals of providing more expansive coverage under the ADA and simplifying litigation. The ADAAA also makes important changes to the definition of the term "disability" by rejecting the holdings in several United States Supreme Court decisions and portions of the EEOC's previous ADA regulations. The most significant effect of these changes is to make it easier for an individual to establish that he or she has a "disability" within the meaning of the ADA.

Under the ADA, an individual with a disability is one who has an impairment which substantially limits one or more major life activities. The new regulations confirm that all impairments require an individualized assessment. According to these new EEOC regulations, the term "substantially limits" now requires a lower degree of functional limitation than the standard previously applied by the courts. An impairment no longer needs to prevent or significantly restrict a major life activity to be considered "substantially limiting." The final regulations also clarify that the ADAAA does not protect individuals who contend they were treated less favorably than individuals with disabilities.

In addition to the broader and more relaxed standard governing the definition of disability, the new EEOC regulations interpret several other notable aspects of the ADAAA. In the past, the United States Supreme Court ruled that mitigating measures should be taken into account when determining whether or not an impairment rose to the level of a disability. For example, if an individual were able to control a chronic disease with medication, under the old standard, they may not have been considered "disabled." Under the ADAAA and the new regulations, mitigating measures may no longer be considered when making the determination as to whether an individual has a disability (with the exception of corrective eyewear). For example, an individual with severe hearing loss who is able to function normally due to an advanced hearing aid that allows him/her to hear as well as anyone else would still be considered an individual with an impairment that substantially limits the major life activity of hearing, despite the corrective measure. Further, under the new law, an impairment that is episodic or in remission (such as periodic epilepsy) is a disability if it would substantially limit a major life activity at the times when it is active. While the effects of an impairment lasting or expected to last less than six months can be a disability, an impairment lasting a short time will not generally be a disability unless "sufficiently severe."

Under the prior law, a non-disabled individual who was "regarded as" having a disability was still eligible for the protections of the ADA. As required by the ADAAA, the new regulations also make it easier for individuals to establish coverage under the "regarded as" aspect of the law. Under prior case law, the focus was largely on what an employer may have believed about the nature of the person's impairment. Now, the ADAAA regulations provide that an individual can establish a claim that he or she is "regarded as" disabled by showing that he or she was subject to an action prohibited by the ADA based on an actual or perceived impairment. That is, the focus is on how the employee was treated, not on what the employer believes about the nature of the individual's impairment.

Although it will be some time before the effects of the ADAAA and the new regulations are fully realized, employers should take extra caution when dealing with employees or applicants who may suffer from an impairment that might constitute a disability under the new standards.

If you have any specific questions about the new law, or need advice dealing with a specific employment situation related to this expansion of coverage under the ADA, contact your employment counsel at Smith, Gambrell & Russell, LLP.

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