March 30, 2011

EEOC Publishes Final Regulations Implementing ADA Amendments Act

EEOC Publishes Final Regulations Implementing ADA Amendments Act

Congress passed the ADA Amendments Act (ADAAA) in 2008.  Among other things, the ADAAA effectively expanded the definition of disability under federal law and directed the EEOC to adopt regulations to assist in implementing the law.  Last week, the EEOC published its final regulations, which will become effective on June 24, 2011. 

Consistent with the ADAAA, the new regulations make it easier for employees to qualify for protection under the law.  Under current law, a disability is defined as (a) a physical or mental impairment that substantially limits one or more major life activities, or (b) a record or past history of such an impairment, or (c) being regarded as having a disability.  The regulations confirm that determining whether an individual qualifies as disabled requires an individualized analysis, rather than mere reference to a diagnosis.  The regulations also create a presumption that individuals suffering from certain conditions will qualify as disabled, however.  Conditions which will generally give rise to a disability within the meaning of the ADAAA include blindness, mobility impairments requiring the use of a wheelchair, diabetes, cancer, HIV infection and a variety of mental disorders, among others.  The regulations also establish various rules of interpretation to be used in determining whether an individual is substantially limited in performing a major life activity. Key elements of the rules of interpretation include:

• Lowering the bar on “substantial limitation”- In the past, an impairment was not regarded as a “substantial limitation” unless it prevented an individual from engaging in, or severely or significantly restricted his or her engagement in, a major life activity.  Impairments may now constitute “substantial limitations” without satisfying this standard, as long as the individual is substantially impaired relative to the general population.  Moreover, decisions regarding the existence of substantial impairment must be made without regard for the ameliorative effects of mitigating measures (such as medication), except ordinary corrective lenses. 

• Loosening the definition of “major life activities”- In addition to lessening the degree of impairment necessary to create a “substantial limitation,” the regulations also expand the scope of the “major life activities” to include the operation of major bodily functions and organs, such as the immune system, sense organs, digestive system, neurological system, circulatory system and respiratory system. 

• Temporary impairments may amount to disabilities- Episodic impairments, or impairments that are in remission, qualify as disabilities if, while active, they would substantially limit a major life activity. 

• Threshold for being “regarded as disabled” also lowered- To prove that an employer regarded him or her as disabled, an individual now must prove only that the employer perceived him or her as disabled, and need not prove that the employer believed that the impairment substantially limited participation in a major life activity. 

 

Employers should recall that California’s Fair Employment and Housing Act provides separate protection to individuals whose condition “limits” (as opposed to “substantially limits”) one or more of their major life activities, and that the protections afforded by state law are in some respects broader than those created by federal law, even following adoption of the new ADAAA regulations.  Although California’s very broad disability discrimination laws will reduce the practical impact of the new regulations in the state, employers that operate outside of California should be sure to familiarize themselves thoroughly with the new regulations, since they will expand the obligations of such employers.  If you have any questions regarding the new ADAAA regulations, or any other issues relating to employment law, we invite you to contact one of our attorneys:

Daniel F. Pyne, III Richard M. Noack Ernest M. Malaspina       Karen Reinhold Erik P. Khoobyarian        Shirley E. Jackson

DPyne@hopkinscarley.com RNoack@hopkinscarley.com EMalaspina@hopkinscarley.com KReinhold@hopkinscarley.com EKhoobyarian@hopkinscarley.com SJackson@hopkinscarley.com

 

Please recognize that this Advisory is intended to serve only as a general overview of certain issues and should not be used as a substitute for legal advice tailored to a specific factual scenario.