If you have any questions regarding this Alert, please contact
The Authors,
Tim Bland, tbland@fordharrison.com, a partner in our Memphis office, and/or
Dylan King, dking@fordharrison.com, an associate in our Memphis office, or the
Ford & Harrison attorney with whom you usually work.
On March 25, 2011, the Equal Employment Opportunity Commission
(EEOC) issued its final revised Americans with Disabilities Act regulations,
implementing the changes brought about by the ADA Amendments Act of
2008 (the ADAAA). The final regulations become effective on May 24, 2011.
Like the ADAAA, the final regulations retain the basic definition of "disability"
as an impairment that substantially limits one or more major life activities, a
record of such an impairment, or being regarded as having such an
impairment. However, the final regulation modifies the terms underlying the
definition – "impairment," "major life activities," "substantially limits," etc. – in
favor of "broad coverage to the maximum extent permitted by the terms of
the ADA as amended." Furthermore, the stated goal of the final regulations
(like that of the ADAAA) is to limit "extensive analysis" into whether an
individual has a disability, and instead focus on whether employers have
"complied with their obligations and whether discrimination has occurred."
• Adding the following activities to the non-exhaustive list of "major life
activities": eating; sleeping; walking; standing; sitting; reaching; lifting;
bending; reading; concentrating; thinking; communicating; and interacting
with others;
• In addition to supplementing the non-exhaustive list of "major life activities,"
the regulation redefines "major life activities" to include the "operation of a
major bodily function," such as digestive, neurological, respiratory,
cardiovascular, endocrine, musculoskeletal, and reproductive functions,
among others.
• The regulation provides nine new "rules of construction" to determine
whether an impairment "substantially limits" an individual in a major life
activity, including:
• The regulation explicitly states that the impairment does not have to
"prevent" or "significantly or severely restrict" the individual from performing
a major life activity. The impairment need only substantially limit "the ability
of an individual to perform a major life activity as compared to most people in
the general population";
• The effects of an impairment lasting or expected to last fewer than six
months can be substantially limiting under the new regulations;
• With the exception of eyeglasses or contact lenses, mitigating measures
such as medication, etc., cannot be considered when making a
determination of whether an impairment substantially limits a major life
activity.
• The regulation provides, as an example, a list of impairments that will
"virtually" always be disabilities, including: deafness; blindness; intellectual
disability; missing limbs; autism, cerebral palsy; diabetes; epilepsy; HIV
infection; multiple sclerosis, muscular dystrophy; and major depressive
disorder, bipolar disorder, post-traumatic stress disorder, obsessive
compulsive disorder, and schizophrenia.
• Although the EEOC had proposed altering the definition of the major life
activity of "working," the final regulation keeps the current definition intact
(i.e., "class of jobs or broad range of jobs"). The EEOC had also proposed
protections for individuals with "symptoms" of an impairment, but that
language was not included in the final regulation.
As expected, the final regulations further advance the ADAAA's goal of
expansive coverage and, as a result, a greater number of employees will be
covered under federal disability law. For this reason, and because the
ADAAA and final regulations call for courts to focus primarily on whether an
employer has met its obligations under the law (rather than whether an
employee is disabled), employers should reevaluate their hiring, attendance,
and other personnel policies and procedures to ensure compliance with the
final regulations.
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