EEOC Provides Guidance with Final ADAAA Regulations

On March 25, 2011, more than two years after the Americans with Disabilities Act Amendments Act (ADAAA) went into effect, the Equal Employment Opportunity Commission (EEOC) published final regulations to clarify the law. The final regulations, which are expected to make it easier for employers to assess whether or not an individual has a substantially limiting impairment, go into effect May 24, 2011. In January 2009, the ADAAA broadened the definition of “disabled” for all employers with 15 or more employees; however, the regulations provide additional guidance and interpretation of the law.  According to the regulations, while the definition of disability remains “a physical or mental impairment that substantially limits one or more major life activities,” the regulations emphasize that going forward, determining whether an employee has a disability “should not demand extensive analysis.”  For example, certain conditions, such as deafness, autism, cancer, epilepsy, diabetes, bipolar disorder, post-traumatic stress disorder, and HIV will now “virtually always” be considered disabilities.  Also, whether an activity is “major” is not to be determined by its “central importance to daily life.”  For example, sleeping, thinking and interacting with others and the operation of major bodily functions such as the immune system and reproductive functions qualify. According to the regulations, an impairment “need not prevent, or significantly or severely restrict” the performance of a major life activity to be considered substantially limiting, and scientific, medical and statistical analysis are not necessary.  Impairments that are episodic or in remission, such as epilepsy or cancer are disabilities if they substantially limit a major life activity when active.  Furthermore, whether an impairment is a disability must be considered without regard to assistance such as medication or equipment use, with the exception of contact lenses or ordinary eyeglasses.  Employees no longer need to show that their employer perceived them to be substantially limited in a major life activity to establish that they were “regarded as” disabled, but only that they were subjected to a prohibited action because of an actual or perceived impairment and impairments lasting only a short period of time may be considered disabilities if the impairment substantially limits a major life activity and if the “effects” of the impairment, lasting even less than six months, can be substantially limiting. As a result of these regulations, employers will need to shift focus from determining whether an individual has a disability to determining whether discrimination occurred because of a disability, whether an individual was disqualified for a job, or whether a reasonable accommodation was necessary.  This can be done by updating internal disability discrimination policies and reasonable accommodation processes, training managers and supervisors to recognize when a reasonable accommodation might be necessary, and making sure that charges of disability discrimination are handled by a person with appropriate expertise. In addition to following the law and regulations of the ADAAA, it is important to also make sure that applicable state disability laws are followed, which, at times may be more generous to applicants and employees.  For help with your company’s specific concerns, consult an employment law attorney licensed to practice in your state.  For a list of attorneys who regularly represent AGC members on labor and employment matters, visit www.agc.org/lelc and click on the LELC Roster link. For a full copy of the ADA Amendments Act, click here. For more ADA resources, visit AGC’s Labor & HR Topical Resources web page and select the category EEO, subcategory Americans with Disabilities Act.