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MAJOR TRAINING OPPORTUNITY: the EEOC’s New ADAAA Regulations

On March 25, 2011, the Equal Employment Opportunity Commission (EEOC) issued its final regulations implementing the 2008 ADA Amendment Act (ADAAA).  The final regulations create a critical management training need that should be implemented promptly.  The final regulations create a much lower threshold for employees to meet in order to establish that they are disabled. Consequently, because more employees will be “disabled,” employers need to ensure that their managers and supervisors are aware of their compliance obligations.

In addition to being regarded as disabled or having a record of being disabled, an individual is “disabled” under the ADA if the person is substantially limited in a major life activity. The final regulations provide nine “rules of construction” when determining whether an impairment is a substantially limiting. These “rules” are largely unchanged from the proposed rule, providing for example that the ability of the individual to perform the major life activity will be compared to “most people in the general population.”

A critical part of the final regulations for employers to address is that the “rules of construction” make clear that short-term and/or episodic conditions may be substantially limiting; no longer are only “permanent or long-term” conditions disabling. Significantly, the final regulations caution employers against demanding extensive documentation and against making a comprehensive analysis when determining whether an employee has a condition that substantially limits a major life activity.

Although it had been eliminated in the proposed rule, the final regulations reinstate the “condition, manner, or duration” standard when evaluating a substantial limitation. This means that rather than merely referencing the duration of the impairment, the evaluation will also consider how long the employee takes (or is able) to perform the major life activity as compared to others.

When it issued the proposed regulations, the EEOC was criticized for creating lists of “per se” disabilities. The criticism stemmed primarily from the fact that a per se list was contrary to the overriding principle of the ADA that each employee be individually assessed. While the final regulations retain the list, they also include a statement that while the listed conditions will “virtually always” be disabilities, an individualized assessment is still required. The final regulations do, however, remove the proposed rule’s list of conditions that would typically not be disabilities.

In defining major life activities, the final regulations set forth a non-exhaustive list of bodily functions and major activities that are largely taken from the ADAAA. As the EEOC notes, however, because “major life activity” includes major bodily functions (e.g., normal cell growth, immune system, reproductive functions, etc.), it will be easier to find that individuals with certain impairments are disabled. Thus, while “work” is listed as a major life activity, it is considered unlikely that it will be necessary to determine whether someone is substantially limited in the ability to perform a broad range of jobs.

Issuance of the final regulations brings certainty and clarity to the changes wrought by the ADAAA. With the possible exception of the list of “per se” disabilities, the regulations leave several questions unanswered to be resolved in court. However, more attention will need to be given to having an interactive dialog with employees regarding their impairments and to making reasonable accommodations since the definition of “disabled” applies to more individuals as reconstructed.

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