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A key goal of the Americans with Disabilities Act Amendments Act (ADAAA) of 2008, effective Jan. 1, 2009, was to focus less on the definition of disability and more on whether employers are meeting their obligations to refrain from discrimination and to provide reasonable accommodations. The final regulations, published March 25, 2011, in the Federal Register, reinforce that intent.
“Under the new law, the focus is on how the person was treated rather than on what an employer believes about the nature of the person’s impairment,” the U.S. Equal Employment Opportunity Commission (EEOC) said in a statement issued March 24, 2011, to announce the regulations.
Yet the renewed focus on how people with disabilities are treated cannot overshadow completely the changes in the regulations that address how disability is defined, the EEOC statement noted: “The ADAAA states that the definition of disability should be interpreted in favor of broad coverage of individuals. The effect of these changes is to make it easier for an individual seeking protection under the Americans with Disabilities Act (ADA) to establish that he or she has a disability within the meaning of the ADA.”
Legal Report article, published in January 2009 prior to the release of a proposed rule, predicted that the ADAAA would expand the scope of the law’s protection in a dramatic way: “Most individuals over 50 years old seem likely to be covered by the ADA,” the article predicted, “since most individuals who are older than 50 have some deterioration in their body, and that is all that is required to fall under the new and improved ADA.”
During a Society for Human Resource Management (SHRM) webcast titled “The New ADAAA Regs—Get the Facts You Need to Stay in Compliance,” on March 29, 2011, SHRM’s director of government affairs, Michael Aitken, noted that the courts had narrowed some of the protections the original ADA was expected to provide. Working with other employer groups and those in the disability community, SHRM helped craft a compromise—the ADAAA—that passed Congress “with strong support.” The bipartisan set of regulations “sets the right balance between employers and individuals with disabilities,” he said.
final regulations go into some detail on the definition of disability, as
SHRM Online has reported, and they provide “examples of impairments that should ‘easily be concluded to be disabilities.’ ”
Victoria A. Lipnic, an EEOC commissioner who co-presented the webcast, noted that the emphasis in the regulations is on coverage. “When Congress passed the ADAAA, they intended that more people would be covered,” she said, describing the law as a “big sea change,” particularly for those with episodic conditions such as epilepsy, cancer and diabetes that often failed to be deemed “disabilities” by courts interpreting the original law.
The final ADAAA regulations “align very squarely with Congress’ intent,” she added, which includes an overall goal of having people with disabilities be a part of the workforce.
Lipnic said the EEOC relied on three resources in crafting the ADAAA regulations:
“More will be protected, and because more will be, the reasonable expectation for employers is that there will be more requests for accommodation,” Lipnic said.
Lipnic’s co-presenter during the webcast, Robert Duston, a partner at Saul Ewing LLP, said the ADAAA regulations present a paradigm shift. Although individuals receive protection under one of three “prongs”—if they have an “actual disability,” a “record of” a disability or are “regarded as” a person with a disability—he said the “regarded as” prong is “where most of the decisions are going to come up that involve any adverse employment actions—other than requests for accommodation.
“There really is a shift in what the EEOC is thinking,” he said.
“Employers no longer have to perceive individuals as substantially limited in a major life activity to be protected,” Duston noted, citing a section of the regulations that says:
Where an individual is not challenging a covered entity’s failure to make reasonable accommodations and does not require a reasonable accommodation, it is generally unnecessary to proceed under the “actual disability” or “record of” prongs, which require a showing of an impairment that substantially limits a major life activity or a record of such an impairment. In these cases, the evaluation of coverage can be made solely under the “regarded as” prong of the definition of disability, which does not require a showing of an impairment that substantially limits a major life activity or a record of such an impairment.
“Run-of-the-mill cases will be prong three,” he said.
The appendix of the new regulations quotes the Hoyer-Sensenbrenner statement, which says, in part, that Congress expected the first and second prongs of the definition of disability “to be used only by people who are affirmatively seeking reasonable accommodations.” Those claiming discrimination other than denial of accommodation “should be bringing a claim under the third prong of the definition which will require no showing with regard to the severity of his or her impairment,” the statement continued.
“There is going to be more than a little litigation talking about which category an issue falls into,” Duston predicted.
“What Congress intended is that more employees will be covered than ever before,” he added. “You might as well treat every employee request and job action as a potential ADA claim and analyze it accordingly.”
Duston recommends that employers:
“This is enough of a shift in focus and perception that anyone involved in this needs to understand that the ADA has been amended in a very broad way,” he said.
Rebecca R. Hastings, SPHR, is an online writer/editor for SHRM.
Final ADAAA Rule Scaled Back from Proposed Rule,
SHRM Online Legal Issues, March 2011
EEOC Final Rule Implementing the ADA Amendments Act of 2008
Questions and Answers on the Final Rule Implementing the ADA Amendments Act of 2008
Questions and Answers for Small Businesses: The Final Rule Implementing the ADA Amendments Act of 2008
Fact Sheet on the EEOC’s Final Regulations Implementing the ADAAA
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