In 2008, in response to a series of Supreme Court decisions Congress believed too narrowly interpreted the Americans with Disabilities Act of 1990 (“ADA”), Congress enacted the Americans with Disabilities Act Amendments Act (“ADAAA”). The ADAAA became effective January 1, 2009, expanding the interpretation of “disability” and clarifying and expanding the scope of “major life activities.” Generally speaking, these amendments shifted the focus in disability cases from whether an employee is disabled to whether there is a suitable and reasonable accommodation. For the past two years, the Equal Employment Opportunity Commission (“EEOC”) has been working on regulations implementing these amendments. On May 24, 2011, the regulations went into effect. So what do these new regulations mean and what should employers do?
The EEOC regulations create nine rules of construction to be used to clarify several terms used in the ADAAA and provide guidance regarding how those terms should be interpreted in practice. The nine rules, summarized below, are to be used to determine whether an impairment is substantially limiting, and thus, qualifies as a disability under the ADAAA:
- The term “substantially limits” requires a lower degree of functional limitation than the standard previously applied by the courts.
- If an impairment limits the ability of an individual to perform a major life activity as compared to most people in the general population, it is a disability.
- The primary focus in ADAAA cases should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual’s impairment substantially limits a major life activity.
- An individualized assessment is required to determine whether an individual’s impairment substantially limits a major life activity.
- The comparison of an individual’s performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical evidence or analysis.
- The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigation measures (except for ordinary eyeglasses or contact lenses).
- An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
- An impairment need not substantially limit more than one major life activity in order to be considered a substantially limiting impairment.
- The six-month “transitory” part of the “transitory and minor” exception to “regarded as” coverage does not apply to the definition of an actual disability. The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting.
With the new emphasis placed on expanding the coverage of the ADAAA and the EEOC’s focus on enforcement in this area, employers can expect to see an increase in disability discrimination claims. In light of these regulations, now is a perfect time for employers to take some steps that could assist in addressing a disability issue should one arise. Reviewing and revising job descriptions, training human resources and supervisory personnel, and evaluating and/or establishing policies for engaging in an interactive process to address requests for accommodations are just of few of the steps employers should consider taking. Employers are wise to familiarize themselves with these new regulations and to talk to their legal counsel regarding policies and practices that may need to be established in order to comply with obligations under the ADAAA. The attorneys at Wickens, Herzer, Panza, Cook & Batista would be happy to assist you in this regard.