Mar 28, 2011

Final ADAAA Regulations Issued

Last Friday, the EEOC issued its long-awaited final regulations interpreting the Americans with Disabilities Act Amendments Act (ADAAA). The Commission released proposed regulations interpreting the ADAAA and asking for public comment about a year and a half ago. After reading the more than 600 comments that were submitted in response to the proposed regs, the EEOC made some key changes and additions. (You can read my previous post on the proposed regs here.)

Here are a handful of the changes I found interesting:

List of disabilities. Actually, I don't think this is much of a change, although others disagree. The proposed regulations included a list of impairments that "will consistently meet the definition of disability." Previously, courts had interpreted the ADA to require an individual assessment of the way a particular impairment affected a particular employee. Many commentators objected to the proposed list, arguing that the regulations should still require an individual analysis. The final regulations changed the wording -- in a way that many employer advocacy groups applaud -- but to me, it looks like the effect will still be the same. Rather than saying these impairments will "consistently meet" the definition, the final regulations say that they will, "as a factual matter, virtually always be found" to be disabilities, which means that "the necessary individualized assessment should be particularly simple and straightforward." Then, the final regulations list the exact same impairments that appeared in the proposed regulations.

"Regarded as" disability claims. An employee can be protected by the ADA because the employee has a disability (termed "actual disability" cases by the final regs); because the employee has a record of disability, or because the employer incorrectly regards the employee as having a disability. The ADAAA clarified that an employee making a "regarded as" claim isn't entitled to a reasonable accommodation (which makes sense, as the employee isn't claiming to have a disability), but also need not prove that the employer regarded him or her as having a disability as defined by the ADA -- that is, an impairment that substantially limits a major life activity. The final regulations state that an employee who doesn't need a reasonable accommodation and isn't challenging the employer's failure to provide such an accommodation can proceed under the rules for "regarded as" claims. In other words, an employee who is claiming discrimination (rather than failure to accommodate) doesn't have to prove that he or she has a disability.

Substantially limits. In keeping with the ADAAA directive that the EEOC should redefine "subtantially limits" in favor of broader coverage, the final regulations state that the term is "not meant to be a demanding standard." They also clarify that a person can be substantially limited in performing a major life activity even if that person is not prevented, or significantly restricted, from performing that activity. The final regulations indicate that the condition, manner, and duration of the person's performance of the activity should be examined. For example, can the person perform the activity only for a brief period? Must the person expend significant effort to perform the activity? Is it painful or otherwise difficult for the person to perform the activity? Do the side effects of medication or other treatment make it harder for the person to perform the activity?  

Transitory and minor impairments. The ADAAA states that an employee may not make a "regarded as" disability claim based on transitory and minor impairments. The final regulations clarify that this is an affirmative defense, to be proved by the employer, which must show that the impairment is both minor and transitory, in fact. It's not enough to show that it's either minor or transitory, nor that the employer mistakenly believed it to be minor and transitory.

Working as a major life activity. The proposed regulations included a lengthy discussion of the major life activity of working. This section was unpopular with employer advocacy groups -- and was removed from the final regulations. It's still discussed in the Appendix to the regulations, but in abbreviated form. (Many examples that appeared in the proposed regs were similarly consigned to the Appendix in the final version.)