Last year the Equal Employment Opportunity Commission (“EEOC”) issued final guidelines interpreting the ADA Amendments Act of 2008 (“ADAAA”). The final ADA regulations went into effect on May 24, 2011, and they make it easier for employees to be protected under the law. The final regulations confirm that the term “disability” is defined broadly, and lowers the threshold for an employee to establish that he or she has a “disability” or that the employer was regarded the employee as having a disability under the law. The final regulations further expand the list of conditions that the law considers to be disabilities.

The Final ADA Regulations
The ADAAA was enacted to amend the Americans with Disabilities Act (“ADA”) in response to several U.S. Supreme Court decisions that interpreted the definition of “disability” very narrowly. The ADAAA defines a “disability” in a broad sense, and does not require an extensive analysis of whether the employee’s condition qualifies as a disability under the law, as courts had done in the past.

The ADAAA continues to define a disability as (a) an impairment that substantially limits one or more major life activity; (b) a record of such impairment; or (c) being regarded as having such impairment. However, the new regulations strive to shift the focus from whether or not the employee qualifies as having a “disability” to the steps taken by the employer to accommodate the employee or applicant.

The ADA regulations include some of the following changes:

“Disability” Broadly Defined. The final regulations make it clear that the definition of “disability” shall be interpreted broadly.
“Substantially Limited” Given Broad Interpretation. The regulations clarify that a limitation does not need to “significantly” or “severely” limit a major life activity in order to meet the standard of “substantially limited.”
Major Life Activities Expanded. The regulations increase the scope of a major life activity under the ADA, and provide two new lists of major life activities:

• Activities: 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.
• Major Bodily Functions: functions of the immune system, special sense organs, skin, normal cell growth, digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions.

Mitigating Measures May Not Be Considered. The regulations make clear that mitigating measures should not be considered in determining whether an individual has a “disability,” except for eyeglasses and contact lenses.

Episodic Condition May Be a Disability. The regulations provide that a condition that is episodic or in remission may be considered a “disability” if the condition would substantially limit a major life activity when active.

Definition of “Regarded As” Disabled Changed. Under the new regulations, an employee satisfies the definition of “regarded as” when the employee shows that the employer discriminated against the employee because the employer believed the employee had an actual or perceived condition, unless the employer can show that the impairment is both transitory and minor. The regulations further clarify that an employee covered under the “regarded as” prong is not entitled to reasonable accommodation under the ADA.

To read the new ADA regulations, click here.

Practical Steps for Employers to Comply With the ADA and ADAAA
The new regulations expand the definition of “disability” and this means more employees and applicants will be covered by the ADA. It will be more important than ever for employers to work with employees and applicants on reasonable accommodations. In light of these changes, employers covered by the ADA should:
Revisit the Company’s Definition of Disability. Make sure you are not using an outdated or narrow definition of what is considered a disability under the law.

Update Your Employee Handbook. Employers should review and revise any existing policies to clearly state policies relating to disability, including clearly spelling out the disability accommodation process and the steps to follow to request an accommodation.

Train Employees on Recent Changes to the Law. HR professionals and supervisors who are responsible for handling accommodation requests should be made aware of the broadened scope and application of the ADA.

Make an Effort to Accommodate. Make sure that your application process allows applicants to request an accommodation, and instruct managers and supervisors to make a real effort to accommodate the needs of disabled employees.
Document All Accommodations. Employers should keep a written record of all accommodations in order to preserve a record of all attempts to accommodate employees.

Seek Legal Advice Before Terminating an Employee Who Has Requested Accommodations. Make sure to seek the advice of an attorney when you are looking to terminate an employee who is seeking or has already sought accommodations in order to avoid potential legal claims relating to disability discrimination.
If you have any questions about complying with the ADA or ADAAA, please contact one of the employment law attorneys at Trepanier MacGillis Battina P.A.
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