June 28, 2011

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EEOC Implements Final Regulations for ADA Amendments Act:

Are Your Company's Policies, Handbooks, and Job Descriptions Up-To-Date?

While the Americans with Disabilities Act Amendments Act ("ADAAA" or the "Act") became effective on January 1, 2009, the Equal Employment Opportunity Commission ("EEOC") only recently released its final regulations implementing the Act. Those regulations became effective on May 24, 2011.

The ADAAA overturned a number of Supreme Court decisions that Congress believed had interpreted the definition of "disability" too narrowly. Congress introduced the ADAAA to "restore the intent and protections of the Americans with Disabilities Act of 1990," and charged the EEOC with amending its regulations to reflect the changes made by the Act. While the statutory definition of disability remains the same - a physical or mental impairment that substantially limits one or more major life activities; a record of such an impairment; or being "regarded as" having such an impairment - the regulations set forth a number of key "rules of construction," including, among others:

  • The term "substantially limits" is to be construed broadly in favor of expansive coverage, and is not meant to be a demanding standard.
  • While not every impairment will constitute a disability, an impairment need not prevent, or "significantly" or "severely" restrict, a major life activity to be considered substantially limiting.
  • The question of whether an impairment substantially limits a major life activity should not demand extensive analysis. Instead, "[t]he primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations."
  • The determination of whether an impairment substantially limits a major life activity requires an individualized assessment.
  • With the exception of ordinary eyeglasses and contact lenses, the determination of whether an impairment substantially limits a major life activity is to be made without regard to mitigating measures, such as medications or medical devices.
  • An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
  • Even short-term impairments, including those lasting less than six months, can be considered substantially limiting in some cases.

Applying these principles, the regulations identify certain impairments that should easily be found to constitute disabilities, including epilepsy, diabetes, cancer, HIV infection, and bipolar disorder. The regulations also broaden the protection provided by the "regarded as" prong of the statutory definition of disability, as an individual now need only show that he or she was subjected to discrimination because of an actual or perceived impairment that is not "transitory and minor."

As the regulations make clear, the main focus in cases brought under the ADA is now whether discrimination has occurred (including whether reasonable accommodations have been made), not whether an individual meets the statutory definition of "disabled." In light of this clarified focus, employers should ensure their policies and handbooks, including strong equal employment opportunity and prohibition of discrimination and harassment policies, are updated and communicated to employees. Employers also should ensure that supervisors, managers, and HR professionals are trained to engage in an "interactive process" with employees to identify reasonable accommodations and respond to disability-related inquiries. To that end, well-crafted written job descriptions can assist both employers and employees in identifying the essential functions of a particular job, thereby making it easier to identify any needed accommodations. As with other employment decisions, good documentation can be critical when defending against claims of discrimination or failure to reasonably accommodate an alleged disability.

If you have any questions about the ADAAA, please contact any member of Ryley Carlock & Applewhite's Labor and Employment Practice Group.