On March 24, 2011, more than two years after the ADA Amendments Act of 2008 ("ADAAA" or "the Act") became effective, the Equal Employment Opportunity Commission ("EEOC") issued its much-anticipated final regulations interpreting the ADAAA's requirements.  The regulations clarify the requirements of the law and provide guidance for complying with the Americans with Disabilities Act ("ADA") as amended by the ADAAA.  As discussed below, the ADAAA and EEOC regulations make it apparent that the primary focus in ADA cases is not whether the individual's medical condition qualifies as a "disability," but whether the employer complied with its obligations under the law. 

Background

Congress passed the ADAAA in late 2008 in response to several U.S. Supreme Court cases that narrowed the scope of protection under the ADA.  One result of these and other federal court decisions had been a focus in ADA cases on whether the plaintiff's medical condition was serious enough to be a "disability."  The plaintiff's inability to establish a disability resulted in dismissal of many an ADA lawsuit.  The primary purpose of the ADAAA is to reinterpret the concept of a "disability" to make it easier to obtain protection under the ADA.  In the ADAAA, Congress directed and expressly authorized the EEOC to revise its regulations to conform to the changes made by the Act.

Highlights of the New Regulations

The ADAAA and the final regulations retain the ADA's definition of the term "disability" as a physical or mental impairment that substantially limits one or more major life activities; a record (or past history) of such an impairment; or being regarded as having a disability.  The ADAAA made significant changes, however, to how those terms must be interpreted.  These changes are implemented by the final regulations.   Among other things, the regulations:

• Revise the definition of the term "substantially limits'' by providing that a limitation need not "significantly'' or "severely'' restrict a major life activity in order to meet the standard;
  
  
• Expand the definition of "major life activities'' through two non-exhaustive lists.  The first list includes activities such as caring 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 second list includes major bodily functions, such as functions of the immune system, special sense organs and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal and reproductive functions;
  
  
• Clarify that the definition of disability should be broadly interpreted and provide examples of impairments that should easily be concluded to be disabilities, such as HIV infection, diabetes, post-traumatic stress disorder and bipolar disorder;
  
  
•  Provide that mitigating measures other than "ordinary eyeglasses or contact lenses'' shall not be considered in assessing whether an individual has a "disability;"
  
  
• Provide that an impairment that is episodic (such as epilepsy or post-traumatic stress disorder) or in remission (such as cancer) is a disability if it would substantially limit a major life activity when active;
  
  
• Provide that the definition of "regarded as'' no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity and instead provide that an applicant or employee who is subjected to an action prohibited by the ADA (e.g., failure to hire, denial of promotion or termination) because of an actual or perceived impairment will meet the "regarded as'' definition of disability, unless the impairment is both transitory and minor;
  
  
• Provide that individuals who do not have an actual disability, and thus are covered only under the "regarded as'' portion of the definition, are not entitled to reasonable accommodation; and,
  
  
• Provide that qualification standards, employment tests or other selection criteria based on an individual's uncorrected vision shall not be used unless shown to be job-related for the position in question and consistent with business necessity.

Significance

Both the ADAAA and the EEOC regulations make clear that the definition of disability is to be construed broadly.  Accordingly, it is less likely that employers will prevail on ADA claims by arguing that the individual at issue did not have a disability.  Rather, employers should focus on complying with their obligations under the law, including engaging in the interactive process and providing reasonable accommodation.

© 2011 Perkins Coie LLP

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