H. Joseph Cohen, Partner, Barrett & McNagny LLP
- Health Care, Labor & Employment Law
Legal Update
The ADA Amendments Act of 2008 (ADAAA) was enacted on September 25, 2008, and became effective on January 1, 2009. The law directed the U.S. Equal Employment Opportunity Commission (EEOC) to amend its ADA regulations to reflect the changes made by the ADAAA. The EEOC’s final regulations become effective sixty (60) days from their publication on March 25, 2011 and contain significant changes from the pre-amendment ADA.
In enacting the ADAAA, Congress made it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the statute. Following the ADAAA, the regulations keep the ADA’s definition of the term “disability” as 1) a physical or mental impairment that substantially limits one or more major life activities; 2) a record of such an impairment; or 3) being regarded as having a disability.
One of the most significant changes in the new regulations concerns the “regarded as” prong of the ADA’s definition of “disability”. The regulations make it easier for individuals to establish coverage under the “regarded as” part of the definition of “disability”. Under the ADAAA, the focus for establishing coverage is on how a person has been treated because of a physical or mental impairment (that is not transitory and minor), rather than on what an employer may have believed about the nature of the person’s impairment. However, the regulations do clarify that an individual must be covered under the first prong (“actual disability”) or second prong (“record of disability”) in order to qualify for reasonable accommodation.
The new regulations amended the definition of “substantially limits” to require a lower degree of functional limitation. As a result, an impairment does not need to prevent or severely or significantly restrict a major life activity to be considered “substantially limiting.” An impairment is a disability within the meaning of this section if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.
The new regulations also expand the definition of “major life activity”. The following examples are now included in the new regulations as major life activities: eating, lifting, sleeping, standing, sitting, reading, concentrating, reaching, bending, thinking, communicating and interacting with others. However, the new regulations defined “major life activities” to also include major bodily functions. “Major bodily functions” is defined to include functions of the immune systems; functions of the special sense organs and skin; and digestive, bowel, bladder, neurological, brain, respiratory, circulatory and reproductive function, genitourinary, cardiovascular, thymic, lymphatic and musculoskeletal functions; normal cell growth; and the operation of an individual organ within a body’s system such as kidneys, liver, or the pancreas.
The final result is that Congress has overturned several Supreme Court decisions that Congress believed had interpreted the definition of “disability” too narrowly, resulting in a denial of protection for many individuals with impairments. The ADAAA states that the definition of “disability” should be interpreted in favor of broad coverage of individuals.
