The Americans with Disabilities Act was amended in 2008 (“ADAAA”) and imposed a number of significant changes, particularly as to the determination of who has a “disability” under the ADA.  The ADAAA overturned several major Supreme Court cases and caused concern amongst employers attempting to figure out how the changes would impact their obligations under the ADA. 

Employers now have additional guidance because while the ADAAA was effective January 1, 2009, the Equal Employment Opportunity Commission’s (EEOC) final regulations implementing the ADAAA were released and effective March 25, 2011. 

Available on the Federal Register website, the regulations do not change the definition of the term “disability,” but, instead, put into practice the significant changes in how the definition is to be interpreted. 

The EEOC has stated that the regulations adopted “rules of construction” to use when determining if an individual has a disability.  These principles include the following:

  • The term “substantially limits” or requires a lower degree of functional limitation than the standard previously applied by the court and is to be construed broadly, in favor of expansive coverage;
  • With one exception (ordinary eyeglasses or contact lenses), the determination of whether an impairment substantially limits a major life activity shall be made without regard to effects of mitigating measures to improve the impairment, such as medication or hearing aids;
  • An impairment that is episodic or in remission is still a disability, if it would substantially limit a major life activity when active.

In addition, the regulations clarify that the term “major life activities” includes “major body functions,” such as functions of the immune system, and provides examples of impairments that should virtually always constitute a disability (including cancer, epilepsy, and bipolar disorder).

Employers should become familiar with the EEOC’s final regulations and must be careful in applying the new law as it is now easier for individuals to establish coverage under the ADA.