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April 19, 2011

EEOC Issues Final ADAAA Regulations and Interpretative Guidance

On September 25, 2008, Congress passed the ADA Amendments Act of 2008 ("ADAAA"), which became effective January 1, 2009. The ADAAA greatly expanded the definition of "disability" under the Americans with Disabilities Act ("ADA"), and made it easier for individuals to demonstrate they are entitled to reasonable accommodations and other protections under the ADA. Along with passing the ADAAA, Congress directed the Equal Employment Opportunity Commission ("EEOC"), which is the federal agency responsible for enforcing ADA provisions prohibiting disability discrimination in the workplace, to issue final regulations and interpretive guidance to implement the ADAAA.

Following publication of its Notice of Proposed Rulemaking on September 23, 2009, the EEOC received over 600 public comments, from private individuals (with and without disabilities), federal and state governments and agencies, civil rights groups, attorney associations, employer associations, and industry groups, among others. On March 25, 2011, the EEOC issued its final regulations and interpretive guidance, which become effective May 24, 2011. The full text of the ADAAA regulations, and other information regarding the ADAAA, can be found on-line at

More Expansive Interpretation of Disability

The ADAAA retained the definition of "disability" as a physical or mental impairment that substantially limits one or more major life activities; a record of such an impairment; or being regarded as having a disability. However, the ADAAA significantly broadened the way employers and courts should interpret these terms, and the EEOC regulations implement those changes. By way of example: 

The regulations make clear that, although pregnancy itself is not a disability, a pregnancy-related impairment that substantially limits a major life activity is a disability under the ADA.

The term "substantially limits" involves a lower degree of functional limitation than previously applied by the courts. Not every impairment will qualify as a disability, but the new regulations make clear that an impairment does not have to prevent or severely or significantly restrict a major life activity to be "substantially limiting."

"Major life activities" include "major bodily functions," such as processes of the immune system, circulatory system, and neurological system.

The term "major," in respect of "major life activities," does not impose a demanding standard for disability. Rather, it includes more general categories of human activities, such as walking, sleeping, concentrating, and "interacting with others."

An individual claiming he or she has been "regarded as" disabled by his or her employer, does not have to show an impairment that "substantially limits" a major life activity. Rather, the focus is on how the person has been treated by the employer because of a physical or mental impairment. That being said, the regulations now provide that an employer does not have to provide a reasonable accommodation to a person who meets the definition of disability only under the "regarded as" prong.

Even a short-term impairment may be considered a disability under the ADA if it is substantially limiting; there is no minimum time an impairment's effects have to last. Moreover, an impairment that is episodic or in remission is a disability if it would
substantially limit a major life activity when active.

Except for ordinary eyeglasses or contact lenses, mitigating measures, such as medication, service animals, and therapy, cannot be considered in determining whether an individual has a disability. Put differently, if an individual would otherwise qualify as disabled without the mitigating measure, he or she would likely be considered disabled under the ADA. The regulations also make clear that an individual's failure to use a mitigating measure cannot be considered in determining whether the impairment substantially limits a major life activity.

Overall, the ADAAA and EEOC regulations emphasize that determination whether an individual is "disabled" under the ADA should not require extensive analysis. Rather, and consistent with Congress's direction, the primary focus of the ADA is whether discrimination occurred.

Impact on Employers and Employees
There is no doubt that the ADAAA and final regulations promulgated by the EEOC will result in ADA coverage for more individuals. Indeed, the EEOC estimates that as many 38.4 million workers in the United States may now be afforded protections under the ADA.

It follows, then, that the costs of complying with the ADAAA and EEOC regulations will likewise increase. In that regard, employers with 15 or more employees will be required to provide accommodations, such as accessible restrooms, ramps or other means of physical access, sign language interpreters or readers, breaks, and variable hours, to a much greater number of individuals. The EEOC's final regulations estimate that between 400,000 and 1.2 million new accommodations will be requested annually, and that the total cost to employers of compliance with the ADAAA and final regulations could exceed $100 million. These estimates do not include increased administrative costs, and increased legal costs employers are likely to incur in connection with defending against a greater number of claims brought under the ADA.

Passage of the ADAAA and adoption of the final regulations implementing the ADAAA will require employers to revisit and revise their disability policies, provide additional training, and take a more proactive role in exploring reasonable accommodations for disabled employees. If you have any questions or require our assistance in reviewing your policies or conducting management training, please contact the Hiscock & Barclay lawyer with whom you normally work or any attorney in our Labor & Employment practice area.


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