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EEOC Implements Final Regulations Based on the ADA Amendments Act

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May 24, 2011 was the effective date for final regulations published by the Equal Employment Opportunity Commission (EEOC) based on the Americans with Disabilities Act Amendments Act of 2008 (ADAAA).1 As a result, employers with fifteen or more employees have yet another set of rules governing their workplaces. Although the ADAAA has been in effect for more than two years, the new regulations extend the ADAAA’s protections and make it even easier for an employee to prove a federal claim of disability discrimination.2 Highlights of the new rules that employers and managers should keep in mind are the following:

1. The new rules still prohibit disability discrimination and require that disabilities be reasonably accommodated unless there is undue hardship. Neither the ADAAA nor the new regulations change the basic framework for analyzing federal disability discrimination issues. Federal prohibitions and protections still mirror those arising under state law. Individuals with disabilities are protected from discrimination and must be reasonably accommodated when the accommodation would not cause undue hardship.

2. Also unchanged is the core definition of “disability.” The core definition of “disability” still has three parts. Federal rules define “disability” as either (a) “a physical or mental impairment that substantially limits one or more major life activities,” (b) “a record of such impairment,” or (c) “being regarded as having such impairment.”

3. But the practical definition of “disability” nevertheless has expanded considerably because of the new meaning assigned to “major life activity.” As is shown above, the range of conditions that will be classified as a “disability” is determined in part by the meaning that is assigned to “major life activity.” The ADAAA thus expanded the concept of “disability” two years ago by providing that a non-exhaustive list of “major life activities” will include activities such as (a) caring for oneself, (b) performing manual tasks, (c) seeing, (d) hearing, (e) eating, (f) sleeping, (g) walking, (h) standing, (i) lifting, (j) bending, (k) speaking, (l) breathing, (m) learning, (n) reading, (o) concentrating, (p) thinking, (q) communicating, (r) working, and (s) operating major bodily functions. The new regulations take all that as a given, and then expand the law even further, by providing that “major life activities” also include (t) sitting, (u) reaching, and (v) interacting with others. And again, this augmented list of activities is a non-exhaustive list. Any impairment that “substantially limits” any one of these activities (or an equivalent activity) constitutes a “disability” within the meaning of federal law.

4. An analogous change in the meaning of “substantially limits” expands the concept of “disability” even further. According to the new regulations, the phrase “substantially limits” should be construed broadly in favor of expansive legal coverage. As a result, a “substantial” limitation does not have to be a “significant” or “severe” limitation. If impairment is episodic or in remission, it is a disability if it would substantially limit a major life activity when active. Medical or scientific evidence typically will not be required to make the necessary assessment. Further, impairments are to be assessed without regard to mitigating measures, except when eyeglasses are used to correct vision.

5. Thus, the “important signal” from the EEOC is clear – employers should not waste time quibbling about whether an impaired employee is disabled. The EEOC views its new regulations as “an important signal to both lawyers and courts.” Parties henceforth are “to spend less time and energy on the minutia of an individual’s impairment, and more time and energy on the merits of the case – including whether discrimination occurred because of a disability, whether an individual was qualified for a job …, and whether a reasonable accommodation was called for.” The intention is to “harmonize” federal disability law with other civil rights laws by placing the focus on whether an employee “has proven that the discrimination was based on a personal characteristic (disability), not on whether he or she has proven that the characteristic exists.” The overall result will be that, under the new rules, virtually all impairments of life activities will be disabilities, virtually all employees with such impairments will have special protection, and in only the rarest of cases will an employer be able to defend by arguing that an employee with such impairment was not disabled.

1 On July 26, 1990, President George H. W. Bush signed into law the Americans with Disabilities Act of 1990 (ADA). When Title I of the ADA became effective two years later, it established federal disability rules governing workplaces of employers with fifteen or more employees. The ADAAA amended those federal rules.

2 The regulations are published at 29 C.F.R. Part 1630 and also are available on the EEOC’s website.

This advisory was prepared by David C. Henderson, a member of the Labor, Employment and Benefits practice group at Nutter McClennen & Fish LLP. For more information, please contact David at 617.439.2345 or your Nutter attorney at 617.439.2000.

This advisory is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising. 

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