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March 30, 2011

EEOC Issues Final Regulations Implementing ADA Amendments Act

On March 25, 2011, the Equal Employment Opportunity Commission (EEOC) published final rules and interpretive guidance implementing the 2008 Americans with Disabilities Amendments Act (ADAAA), which broadened the scope of the Americans with Disabilities Act (ADA) to protect many more employees from discrimination in the workplace.  The ADAAA took effect January 1, 2009; the EEOC’s final regulations will take effect May 24, 2011.  The full text of the EEOC’s Final Regulations, along with Fact Sheets and Q & A, are available on the EEOC’s website.

The ADAAA retains the ADA’s basic, three-pronged definition of “disability”:  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 such an impairment.  However, the ADAAA states that the definition of “disability” must be interpreted in favor of broad coverage and the final regulations explain that the definition of each component of a “disability” is significantly expanded.

“Substantially Limits”

While the EEOC declined to redefine “substantially limits,” the final regulations set forth nine rules of construction to be applied in determining whether a substantial limitation exists:

  1. The term “substantially limits” should be construed as broadly as the ADA allows.  It is not meant to be a demanding standard.
  2. An impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.  It need not prevent, or significantly restrict, the individual from performing the major life activity.  Nonetheless, not every impairment will constitute a disability.
  3. The focus of the analysis should be whether the employer complied with its obligations and whether discrimination occurred, not whether the impairment substantially limits a major life activity.  Therefore, the threshold issue of whether an impairment “substantially limits” a major life activity should not demand extensive analysis.
  4. The individualized assessment to determine if someone is substantially limited should require a degree of functional limitation that is “lower” than the standard prior to the enactment of the ADAAA. 
  5. The comparison of an individual’s performance of a major life activity as to that of the general population usually will not require scientific, medical or statistical analysis, though such analysis may be used “where appropriate.”
  6. The determination of whether a substantial limitation exists must be made without regard to the ameliorative effects of mitigating measures, except for ordinary eyeglasses or contact lenses.
  7. An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
  8. An impairment need substantially limit only one major life activity in order to be considered “substantially limiting.”
  9. The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting.  Therefore, even conditions of short duration (e.g., a few months) can meet this definition.


“Major Life Activity”

The ADAAA expands the definition of “major life activity” to encompass not only those activities formerly covered by the ADA, but several others, including major bodily functions.  To illustrate this expansion, the final regulations set forth two non-exhaustive lists.  The first list includes many activities that the EEOC has recognized (e.g., walking, breathing, caring for oneself) as well as activities that the EEOC has not previously recognized (e.g., reading, communicating, interacting with others).  The second list includes major bodily functions (e.g., functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions).  The regulations emphasize that whether an activity is a “major life activity” is not determined by reference to whether it is of “central importance to daily life.” 

Recognizing the broadening effect of the addition of “major bodily functions” to the definition of major life activity, the EEOC clarifies that the category of “working” as a major life activity should be rarely used.  In the event this category must be used, however, the EEOC’s interpretive guidance retains language which explains that, in order to be substantially limited in the major life activity of working, an individual must show substantially limiting impairment in a “class of broad range of jobs,” not just a single specific job.

“Predictable Assessments” of Impairments

The EEOC emphasizes that an individualized analysis is still required with regard to all disabilities.  However, the final regulations list conditions that “in virtually all cases” will satisfy the definition of disability due to certain characteristics associated with the impairments.  Included in this list are the following:  autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.  With respect to these types of impairments, the necessary individualized assessment should be “particularly simple and straightforward.”

“Regarded As” Disabled as Compared to Having a “Record of” or “Actual” Disability

The ADAAA broadens the “regarded as” prong of the definition of disability by prohibiting discrimination based on the employer’s alleged perception of a mental or physical impairment, even if that impairment is not perceived as one that substantially limits a major life activity.  The sole exception under the ADAAA is for “transitory and minor.”  “Transitory” is defined as a condition that lasts or is expected to last six months or less.  The final regulations incorporate this exception into an affirmative defense, on which the employer has the burden of proof.  Both parts of the affirmative defense (transitory and minor) must be satisfied.  Whether the impairment is transitory and minor must be determined objectively, not subjectively. 

The final regulations make clear that there is no duty to accommodate based on an individual being “regarded as” an individual with a disability.  The regulations also emphasize, however, that if an accommodation request is not at issue, the “regarded as” prong of the test should be the primary means for bringing a disability discrimination claim, as an employee’s burden of proof is easier to meet under this prong of the test. 

Practical Implication for Employers

Under the ADAAA and the final regulations, employers must focus primarily on reasonable accommodations and on whether an individual with a physical or mental condition is otherwise qualified to perform essential job functions, with or without reasonable accommodation.  Accordingly, employers should review and update, where necessary, job descriptions and/or job qualification standards.  Employers should also reevaluate disability discrimination policies and ensure that reasonable accommodation processes meet the employer’s obligation to engage in the “interactive process” when an employee with a disability requests an accommodation.  Employers should continue to regularly train human resources personnel, managers and supervisors regarding their duties under the ADAAA and the final regulations.  We are available to assist you in this regard.

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If you should have any questions regarding the final regulations or the ADAAA, please contact us.