Schiff Hardin LLP March 28, 2011
Schiff Hardin Labor and Employment Alert

EEOC Issues New Regulations Implementing the Amendments to the Americans With Disabilities Act

By Lisa Carey-Davis

The Equal Employment Opportunity Commission (EEOC) has released final regulations implementing the Americans With Disabilities Amendments Act of 2008 (ADAAA). The regulations, which go into effect on May 24, 2011, are available here (eeoc.gov). The EEOC also released two question-and-answer documents about the regulations, which are available here. According to the EEOC, under the ADAAA's newly expanded definition of disability, it will now be "easier for an individual seeking protection under the ADA to establish that he or she has a disability."

Broader Definition of Disability. The ADAAA and the new regulations broaden the definition of "substantially limits" and "major life activity." A person need no longer be "significantly or severely restricted" in a major life activity to be found to be disabled. Rather, an impairment is now a disability if it "substantially limits" the individual "as compared to most people in the general population." Moreover, "major life activities" now include all activities that are "of central importance to daily life," including (but not limited to) "[c]aring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working," the "operation of a major bodily function," and "the operation of an individual organ within a body system." The new regulations make clear that both "substantially limits" and "major life activity" should be "construed broadly" in favor of "expansive coverage," and are not meant to be "demanding standards."

"Predictable Assessments." The regulations also enumerate a list of impairments that, if they substantially limit a major life activity, will "consistently meet the definition of disability." These include deafness, blindness, intellectual disability, autism, cerebral palsy, epilepsy, partially or completely missing limbs, mobility impairments, cancer, autism, HIV/AIDS, diabetes, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.

Most Mitigating Measures Not Relevant. The regulations require that the determination whether an individual is disabled or not be made "without regard to the ameliorative effects of mitigating measures." The regulations provide only one exception to this rule, which is that eyeglasses and contact lenses are to be considered in determining whether an individual has a visual disability.

Definition of "Regarded As" Disabled. The focus of a "regarded as" claim is now on how the person was treated rather than on what an employer believed about the nature of the person's impairment. Now, a non-disabled individual need only show that he or she was subjected to an action prohibited by the ADA based on an actual or perceived impairment, regardless of whether the perceived impairment limits a major life activity.

Impairments that are Episodic or in Remission. An impairment that is episodic or in remission remains a disability "if it would substantially limit a major life activity when active."

These changes to the ADA landscape will impact how employers respond to requests for accommodation from employees or applicants who now may be deemed disabled under the new, broader standards. Employers should review their policies and practices for compliance with the ADAAA and the implementing regulations. If you would like further guidance regarding the ADAAA and its implementing regulations, please contact any member of the Schiff Hardin Labor and Employment Group.

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For more information, please contact any attorney in Schiff Hardin's Labor and Employment Group.