New ADA Regulations Become Effective May 24, 2011

The long-awaited final regulations implementing the ADA Amendments Act (ADAAA) were published in the Federal Register on Friday, March 25, 2011. The regulations become effective sixty days from the date, on May 24, 2011.

Background

The ADAAA was passed by Congress in 2008, became effective on January 1, 2009, and amended the Americans With Disabilities Act (ADA).  The purpose of the ADAAA was to make it easier for an individual to establish that he or she has a disability within the meaning of the ADA by requiring a broad and more lenient interpretation of disability under the law.  The Equal Employment Opportunity Commission (EEOC) issued proposed regulations under the ADAAA on September 23, 2009.

After reviewing more than 600 public comments to the proposed rules, the EEOC published the final regulations, along with an Appendix containing the EEOC’s interpretive guidance.  According to the EEOC, the Appendix “will continue to represent the Commission’s interpretation of the issues discussed in the regulations, and the Commission will be guided by it when resolving charges of discrimination under the ADA.” 

Employer groups have generally found the final regulations to include improvements over the regulations as initially proposed.

Highlights of the final regulations

• References to “a qualified individual with a disability” have been deleted, consistent with the ADAAA.

• Under the “regarded as” prong of the definition of disability, an individual is no longer required to show that he/she is regarded by the employer as being substantially limited in a major life activity.  Rather, the individual must merely show that that he/she has been subjected to an action prohibited by the ADA because of an actual or perceived impairment that is not both “transitory and minor.”

• The EEOC has made clear that where an individual is not seeking a reasonable accommodation, but only complaining about discrimination, then the case should normally proceed under the “regarded as” prong and it is generally unnecessary to invoke prongs one or two, i.e., the “actual disability” or “record of” disability prongs.  Under the ADAAA, an individual who proceeds under the “regarded as” prong is not entitled to a reasonable accommodation as a remedy.

• The EEOC has deleted the long-standing definition of major life activities as those basic activities that most people in the general population “can perform with little or no difficulty,” as being an irrelevant consideration.  As a result, the final regulation simply provides examples of activities that qualify as “major life activities” because of their relative importance.

• The final regulations do not define “substantially limits.”  Rather, the final regulations set out nine “rules of construction” to be used in determining whether an impairment is substantially limiting.

• The EEOC has made clear in the Appendix that the fact that an individual elects not to utilize mitigating measures is irrelevant to the determination of whether an impairment is substantially limiting.  However, the EEOC has clarified that the use or non-use of mitigating measures may be relevant in determining whether the individual is qualified or poses a direct threat to safety.

• In the proposed regulations, the EEOC included a list of impairments that would “consistently meet the definition of disability.”  In the final regulations, the EEOC has clarified that the analysis of whether any of these impairments substantially limits a major life activity still requires an individualized assessment.  However, the individualized assessment will, in virtually all cases, result in a finding that the impairment substantially limits a major life activity.

• The final regulations deleted the proposed regulations (a) listing impairments that may be substantially limiting for some individuals but not others; and (b) providing examples of impairments that “are usually not disabilities.”

• The final regulations reinstated use of the terms “condition, manner, or duration” as concepts that may be relevant to the determination of whether an impairment is substantially limiting.

• The final regulations move the discussion of how to analyze the major life activity of working to the Appendix and have retained the original formulation of “class or broad range of jobs” in analyzing whether an individual is substantially limited in this major life activity.  The proposed regulations sought to replace the concepts of “class” or “broad range” of jobs with the concept of “type of work.”  The EEOC concluded that this change would create confusion.

• The final regulations make clear that even if ADA coverage is established under the “regarded as” prong of disability, the individual must still establish the other elements of a claim of discrimination, e.g., the individual is qualified, he/she has been discriminated against because of the impairment, etc., and the employer may raise any available defenses, e.g., the impairment was transitory and minor.  However, the final regulations also point out that the concepts of “major life activities” and “substantially limits” are not relevant in evaluating coverage under the “regarded as” prong.