EEOC Issues Final ADA Regulations

The Equal Employment Opportunity Commission (EEOC) has released its final regulations implementing the ADA Amendments Act (ADAAA). The ADAAA was signed into law on Sept. 25, 2008, and became effective on Jan. 1, 2009. The Final Regulations will become effective on May 24, 2011.

The regulations support the purpose of the ADAAA, which is to help individuals with disabilities obtain ADA protection. The ADAAA made clear that the primary focus in ADA cases should be on whether employers complied with their obligations under the statute and whether discrimination occurred, not on whether individuals are disabled under the law, and the regulations predictably support broad interpretation. The regulations go further, however, by listing conditions that will “virtually always” be covered impairments. The list includes autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia. The EEOC stopped short of listing these impairments as per se disabilities, but by characterizing listed conditions as “virtually always” covered, many millions of Americans will now be considered disabled. The EEOC also made clear that any impairment – no matter how brief in duration – can be a covered disability.

Another important provision involves those who are “regarded as” having a substantially limiting impairment.  The regulations clarify that an individual is “regarded as having such an impairment” if the individual is subjected to a prohibited action (e.g. demotion or termination) because of an actual or perceived, physical or mental impairment, whether or not that impairment substantially limits, or is perceived to substantially limit, a major life activity. The definition of “major life activity” also is more broadly defined under the regulations.

As a practical matter, many more workers will be entitled to reasonable accommodations, so all employers would do well to review reasonable accommodation policies and procedures and to train legal, human resources and management personnel on recognizing accommodation issues and engaging in an appropriate and documented interactive dialogue.