EEOC Issues Final Regulations Interpreting the ADA Amendments Act

On March 24, 2011, the Equal Employment Opportunity Commission (EEOC) announced that it has approved final regulations interpreting the Americans With Disabilities (ADA) Amendments Act. The announcement marked the culmination of more than two years of debate among the EEOC, employers and employee interest groups concerning the scope and interpretation of the ADA Amendments Act.

The EEOC issued proposed ADA Amendments Act regulations in September 2009 and received more than 600 comments in response. Several of the proposed rules generated significant feedback from employers. Perhaps most notably, the EEOC's proposal included a rule providing that certain conditions, such as AIDS, cancer and some mental health impairments, automatically rendered an individual disabled under the ADA. In response to concerns about this categorical approach, which many groups thought was not the approach Congress had in mind when it passed the ADA Amendments Act, the final rules eliminate the list of conditions that automatically render a person disabled and clarify that an individualized assessment is needed to determine whether a person is disabled under the law. However, in guidance concerning the final regulations issued in "Questions and Answers" format by the EEOC, the agency continues to take the position that "Certain impairments, due to their inherent nature . . . will virtually always be disabilities."

In other areas, the final regulations dropped some specific proposals that generated opposition from employers, but retained the basic framework that the EEOC first proposed in 2009. For example, on the issue of mitigating measures - such as hearing aids and other assistive devices - the regulations still provide that mitigating measures (except ordinary eyeglasses or contact lenses) generally cannot be considered when determining whether someone is disabled, but eliminate a confusing proposal that would have prevented employers from considering surgical intervention as a mitigating measure. The final regulations also eliminated a proposed rule that would have extended the ADA's protections based upon symptoms of a medical condition, without establishment of the underlying medical condition.

Reflecting Congress' intent that ADA apply to as many persons as possible, however, the final regulations emphasize that courts and employers should interpret the ADA in a manner that favors expansive coverage. To that end, while the statute still requires that employees show that a disability substantially limits one or more of their major life activities, the regulations clarify that an impairment does not need to significantly restrict a major life activity to be substantially limiting. Indeed, episodic impairments, such as epilepsy, and impairments that may be in remission, such as cancer, qualify as substantially limiting under the regulations if they would substantially limit a major life activity when active.

With regard to what constitutes a "major life activity," the final regulations provide a non-exhaustive list of examples that includes, in addition to things like eating, standing and caring for oneself, activities such as bending, learning, reading, thinking and interacting with others. The regulations also note that "major life activities" encompass the operation of "major bodily functions," such as the brain, the immune system, the bladder and even reproductive functions. The regulations specifically provide that "operation of a major bodily function" includes the operation of an individual organ within a bodily system.

The final regulations will become effective on May 24, 2011. However, because the regulations interpret the ADA Amendments Act, which has been in effect since 2009, employers should take the final regulations into account immediately when deciding whether someone is disabled under the ADA and therefore entitled to reasonable accommodation in performing essential job functions.