On March 25, the Equal Employment Opportunity Commission (EEOC) issued its final revised regulations and accompanying interpretative guidance to implement the ADA Amendments Act of 2008 (the ADAAA).  To access the Federal Register version of the Supplementary Information, Regulations, and Interpretative Guidance, click here.  The final regulations become effective on May 24.

As was true of the ADAAA itself, the final regulations make it easier for an individual to fall within the definition of a "disability."  They do so primarily by broadening the definition of "major life activities" and by providing broad rules of construction for applying the "substantial limitation" concept.  These regulations also attempt to clarify disability determinations based on either a "record" of an impairment or being "regarded as" impaired.

Here are some of the points covered in the final regulations:

• "Major life activity" is defined through a lengthy but non-exhaustive list of examples.  The regulations delete prior references to basic activities that most people in the general population "can perform with little or no difficulty."  They also expressly state that a major life activity need not be of central importance to most people's daily lives.

• The phrase "substantially limits" is not defined, but several broad rules of construction are provided.  Impairments of even short duration may be substantially limiting if sufficiently severe.  Any notion that a substantially limiting impairment must have a duration of at least six months is expressly rejected.

• Episodic impairments are to be analyzed in their active states.

• Mitigating measures are not to be considered in determining whether an impairment is substantially limiting, but they may be used to determine if an individual is qualified, poses a direct threat to safety, or needs a reasonable accommodation.  Mitigating measures do not include ordinary eyeglasses or contact lenses.

• The final regulations drop a prior reference to surgical interventions as mitigating measures, because the reference was deemed too confusing.  Instead, a case-by-case analysis is to be applied.

• The regulations reemphasize the importance of an individualized assessment in determining whether an impairment is substantially limiting.  However, the regulations state that the substantially limiting standard is lower than it was prior to the ADAAA.  They give examples of types of impairments that, in virtually all cases, will substantially limit an individual's major life activities.  These regulations drop examples of conditions that might be substantially limiting for some but not for others, and they also drop examples of impairments that are usually not disabilities.

• The final regulations add the concept of "condition, manner or duration" to expand the instances in which an impairment will be deemed "substantially limiting."

• To determine whether an individual is substantially limited in the major life activity of working, the concept of an individual being unable to work in a "class or broad range" of jobs has been resurrected.  However, the entire analysis has been moved to the Interpretative Guidance, with an explanation of the post-ADAAA standards to be applied in determining whether an individual is so limited.

• Whether an individual has a "record" of an impairment that substantially limited a major life activity is to be construed broadly in favor of finding coverage under the statute.  Such an individual may be entitled, absent undue hardship, to reasonable accommodation if needed and related to the past disability.  The final regulations give the example of an employee with a previous impairment who may need leave or a schedule change to attend follow-up or "monitoring" appointments with a health care provider.

• An individual who is "regarded as" having a disability must also show that he or she was qualified for the job and prove discrimination because of the perceived impairment.  An employer may establish that the perceived impairment was "transitory and minor" as a defense.  "Transitory" means six months or less.  Considerations of "major life activities" and "substantially limits" are not relevant to this "regarded as" analysis.  Proposed regulations suggesting that "regarded as" coverage could be based on symptoms or mitigating measures have been dropped, although the EEOC notes that "no negative inference ... should be drawn ...."  The EEOC states that this issue is simply too complex for regulations.  No reasonable accommodation is required for a "regarded as" disability.

• If a disability is not apparent or obvious, employers may request supporting medical information, and individuals requesting accommodation must provide such information.

• There is no cause of action for reverse disability discrimination - i.e., by individuals without disabilities who fail to be afforded an accommodation provided to an individual with a disability.

The impact of the ADAAA, as interpreted by these final regulations and Interpretative Guidance, will be to move the critical analysis from whether or not an individual has a disability to whether or not a requested accommodation is reasonable.  Accordingly, well-developed procedures and forms, along with good training for an interactive reasonable accommodation process, will increase in importance.

David L. Wing, Partner
Spencer Fane Britt & Browne LLP