Sweeping ADAAA Regulations Promise Increased Challenges For Employers

August 18, 2011

On March 25, 2011, the Equal Employment Opportunity Commission (“EEOC”) issued final regulations implementing the broad and sweeping changes to the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”).[1] These final regulations take effect May 24, 2011 and cover employers with 15 or more employees. Congress has stated that the purpose of the ADAAA is “to reinstate a broad scope of protection” by expanding the definition of the term “disability.” Individuals with many types of impairments, including epilepsy, diabetes, HIV infection, cancer, multiple sclerosis, intellectual impairments, major depression and bipolar disorder, had been unable to assert claims under the original Americans with Disabilities Act (“ADA”) because they fell outside the scope of the ADA’s definition of “disability. Congress, however, believed that these disabilities must be covered and they revised the ADA accordingly, even overturning Supreme Court precedent in the process. The EEOC has stated that these final regulations are necessary to fully implement the requirements of the ADAAA’s broader definition of “disability.”

To meet the goal of broadening the definition of “disability,” the EEOC regulations clarify numerous terms, including, but not limited to, “physical or mental impairment,” “major life activity,” and “substantially limits.” Neither the ADA nor the ADAAA provide a definition of “physical or mental impairment,” so the EEOC supplied non-exhaustive lists of physical and mental impairments that would be covered under the ADAAA. Under Sections 1630.2(h)(1) and (2), a “physical or mental impairment” means:

(1) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body system, such as neurological, musculoskeletal, special sense organs, respiratory (including speech), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin and endocrine; or

(2) Any mental or physiological disorder, such as an intellectual disability (formerly termed “mental retardation”), organic brain syndrome, emotional or mental illness, and specific learning disabilities.

Addressing the numerous claims involving pregnancy, the EEOC makes clear that pregnancy itself is not an impairment, but any pregnancy-related impairment would fall under the scope of the broader definition of “disability.”

The ADAAA significantly alters and clarifies the term “major life activities.” For purposes of clarity, the ADAAA provides a non-exhaustive list of major life activities, including caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. The EEOC regulations provide further examples of reaching, sitting and interacting with others. Importantly, the ADAAA explicitly defines “major life activities” to include the operation of “major bodily functions.” Section 1630.2(i) of the EEOC regulations provides examples of “major bodily functions,” including special sense organs, skin, genitourinary, cardiovascular, hemic, lymphatic and musculoskeletal functions.

Believing the Supreme Court misinterpreted the term “substantially limits,” Congress has stated that a substantially limiting impairment need not “significantly” or “severely” restrict a major life activity in order to meet the standard. To provide further guidance as to the application of the new “substantially limits” standard, section 1630.2(j) of the EEOC regulations lists nine rules of construction, including the above rule that an impairment need not “significantly” or “severely” restrict a major life activity. These rules of construction encompass two other significant changes: (a) the determination of whether an impairment substantially limits a major life activity must be made without regard to the ameliorative affects of mitigating measures, with the exception of glasses or contact lenses, and (b) an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

These amendments to the ADA and the implementing regulations represent a sweeping change to the landscape of employment law and increase the potential exposure for employers. The full impact of the ADAAA will not be felt for some time as the courts more fully define and interpret the revised terminology.[2] Needless to say, employers will face new and challenging issues on a routine basis. Employers are encouraged to be proactive by familiarizing themselves with the ADAAA and accompanying EEOC regulations, implementing policies and procedures that incorporate these revised terms, and updating training procedures accordingly.

[1] The full text of the final regulation is available at the Federal Register website:  http://www.federalregister.gov/articles/2011/03/25/2011-6056/regulations-to-implement-the-equal-employment-provisions-of-the-americans-with-disabilities-act-as

[2] To that end, the EEOC has included an analysis of the potential costs and benefits of the ADAAA with the text of its final regulations in the Federal Register.

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