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They're Heeeerrrreee! EEOC Issues Final ADAAA Regulations
March 28, 2011
By Andrew Schpak

On March 25, 2011, the Federal Register published the Equal Employment Opportunity Commission's ("EEOC's") final regulations to implement the ADA Amendments Act ("ADAAA"). These regulations will become effective 60 days after the date of publication.

The ADAAA took effect on January 1, 2009 and was designed to reinstate a broad scope of protection following several Supreme Court cases. The final regulations are very different from the proposed regulations the EEOC issued in September 2009. Here are the highlights:

Three-pronged approach to determine disability.

Disability is determined by a three-pronged approach: (a) a physical or mental impairment that substantially limits one or more major life activities (an "actual disability"), or (b) a record of a physical or mental impairment that substantially limited a major life activity ("record of"), or (c) when a covered entity takes an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory and minor ("regarded as").

Use of "regarded as" where no accommodation at issue.

Cases in which an applicant or employee does not require reasonable accommodation can be evaluated solely under the "regarded as" prong of the definition of disability. The EEOC also clarified that, even if an individual is eligible for coverage under the "regarded as" prong, that individual must still establish the other elements of a claim (namely, that he or she is qualified for the position in question and that he or she was subjected to a prohibited action because the employer regarded him or her as disabled). Likewise, the employer may raise any defenses (such as that the employee posed a direct threat).

Rules of construction for "substantially limits."

The EEOC declined invitations to define the term "substantially limits" on the theory that a new definition would lead to a greater focus on the threshold for coverage than was intended by Congress. Instead, the EEOC is providing nine rules of construction that must be applied in determining whether an impairment substantially limits a major life activity.

Broad construction. The term "substantially limits" is to be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. It is not meant to be a demanding standard.

Comparison to general population. An impairment is a disability within the meaning of the regulations if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.

Primary issue is compliance, not substantial limitation. The primary object of attention should be whether the covered employers have complied with their obligations and whether discrimination occurred, not whether an individual's impairment substantially limits a major life activity.

Individualized assessment. The determination of whether an impairment substantially limits a major life activity requires an individualized assessment.

No requirement for scientific analysis. The comparison of an individuals' 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 analysis.

No consideration of mitigating measures. The determination of whether an impairment substantially limits a major life activity must be made without regard to the ameliorative effects of mitigating measures (except ordinary eyeglasses and contact lenses), and without regard to whether measures exist but the individual refuses to use them. The EEOC's final regulations add psychotherapy, behavioral therapy, and physical therapy to the non-exhaustive list of mitigating measures that should not be considered in evaluating whether the individual has an impairment.

Episodic impairments or conditions in remission. An impairment that is episodic or in remission is a disability if it is would substantially limit a major life activity when active.

One substantial limitation is sufficient. An impairment that substantially limits one major life activity need not substantially limit other ones in order to be considered a substantially limiting impairment.

Transitory and minor impairments. Transitory and minor impairments are significant only as to the "regarded-as" coverage and do not apply to the definition of disability under the "actual" or "record of" disability prongs.

Impairments that are always disabilities.

Like the proposed rules, the final rule includes a non-exhaustive list of impairments that will virtually always be found to impose a substantial limitation on a major life activity. These include deafness, blindness, autism, cancer, diabetes, HIV, multiple sclerosis, muscular dystrophy, post-traumatic stress disorder, and schizophrenia.

For more information, visit the EEOC's website: Questions and Answers on the Final Rule Implementing the ADAAA. To view the full text of the final regulations, visit the Federal Register online by clicking here.

To learn more about the EEOC's Final ADAAA & GINA Regulations, visit www.barran.com to register for Barran Liebman LLP's Breakfast Seminar on May 3, 2011.

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