New York Labor and Employment Law Report
The EEOC's ADAAA Regulations Generally Track the Statute
May 17, 2011
More than two years ago, the ADA Amendments Act (the “ADAAA”) of 2008 went into effect. The statute was designed to broaden the coverage of the Americans with Disabilities Act. Earlier this year, the EEOC issued long-awaited and much-debated final regulations to implement the ADAAA. In conjunction with the release of the regulations, the EEOC also released an appendix to the regulations containing examples, a fact sheet on the regulations, a question and answer document and a small business question and answer document. The regulations are effective on on May 24, 2011.
The final regulations eliminate or change many of the more controversial proposed regulations to which employer representatives objected during the notice and comment period. One item which continues to cause controversy, however, is EEOC’s list of so-called “per se disabilities,” impairments that have been characterized as automatically qualifying as covered disabilities. EEOC has created this list through a series of rules of construction used to analyze whether a particular impairment is a disability. The regulations explain that in using these rules of construction, some impairments, such as epilepsy, diabetes, cancer and bipolar disorder, to name a few, will virtually always constitute disabilities. However, the regulations do provide that an individualized assessment is still required in every case.
Most of the new regulations, however, simply implement the ADAAA’s requirements. For example, the regulations provide certain rules of construction used to determine whether an individual is substantially limited in performing a major life activity, and therefore disabled under the Act. Those rules of construction range from the very general (the term substantially limits should be construed broadly in favor of expansive coverage and requires a lower degree of functional limitation than previously required by the courts), to the more specific (an impairment in remission is a disability if it would substantially limit a major life activity when active).
Questions about whether and how a particular major life activity might be substantially limited, including the major life activity of working, are addressed not in the regulations themselves, but in an appendix to the regulations. The EEOC notes that given the significant changes in the definition of disability made by the ADAAA, it will rarely be necessary to determine whether an individual is substantially limited in the major life activity of working.
Consistent with the ADAAA, the new regulations expand coverage under the “regarded as” prong of the statute, focusing on the employer’s treatment of the individual, rather than whether the employer believed the individual had a substantially limiting disability. The question becomes whether the employer took a prohibited action because of an actual or perceived impairment that is neither transitory nor minor. As a result of this redefinition of the “regarded as” prong, the new regulations note that proceeding under this prong will be sufficient for most complainants, the most significant exception being cases where the employee claims he or she was denied a reasonable accommodation. In those cases, the employee will have to proceed under the actual disability or record of disability prongs.
