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In 1990, Congress enacted the Americans with Disabilities Act to eliminate discrimination against individuals with disabilities in many areas of public life, including employment. Effective Jan. 1, 2009, Congress redefined key terms of the ADA in an attempt to broaden the scope of its protections in light of several U.S. Supreme Court cases, which had narrowly interpreted the act. The Equal Employment Opportunity Commission has now published final regulations to implement the ADA Amendments Act. These regulations will go into effect on May 24, so employers should take time to review the new rules. Here are some highlights:

Determination of disability

To be protected, an individual must have a 鈥渄isability,鈥� which is defined as: 1, a physical or mental impairment that substantially limits one or more of the major life activities (鈥渁ctual disability鈥�); 2, a record of such an impairment (鈥渞ecord of鈥�); or 3, being regarded as having such an impairment (鈥渞egarded as鈥�).

鈥淩egarded as鈥�

The new rules clarify that an individual who is 鈥渞egarded as鈥� disabled must still establish the other elements of a claim 鈥� namely, that he is qualified for the position and was subjected to a prohibited action because the employer regarded him as disabled. Likewise, the employer may raise any available defenses 鈥� such as the employee posing a direct threat to himself or others.

鈥淪ubstantially limits鈥�

The ADAAA relaxes the definition of 鈥渄isability鈥� and provides that the question of whether an impairment is a disability should not require extensive analysis. Congress directed the EEOC to revise its regulations and define 鈥渟ubstantially limits鈥� to be consistent with this intent. Rather than define 鈥渟ubstantially limits,鈥� the EEOC has provided nine rules of construction to determine whether an impairment 鈥渟ubstantially limits鈥� a major life activity:

1. The term 鈥渟ubstantially limits鈥� is to be construed broadly in favor of expansive coverage and is not meant to be a demanding standard.

2. An impairment is a disability within the meaning of the regulations if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.

3. The primary object of attention should be whether the covered employers have complied with their obligations and whether discrimination occurred 鈥� not whether an individual鈥檚 impairment substantially limits a major life activity.

4. The determination of whether an impairment substantially limits a major life activity requires an individualized assessment.

5. The comparison of an individual鈥檚 performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical or statistical analysis.

6. The determination of whether an impairment substantially limits a major life activity must be made without regard to the ameliorative effects of mitigative measures (except ordinary eyeglasses and contact lenses), and without regard to whether measures exist but the individual refuses to use them. The EEOC鈥檚 final regulations add psychotherapy, behavioral therapy and physical therapy to the non-exhaustive list of mitigative measures that should not be considered in evaluating whether the individual has an impairment.

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 that substantially limits one major life activity does not need to substantially limit others in order to be considered a substantially limiting impairment.

9. Transitory and minor impairments are significant only as to the 鈥渞egarded-as鈥� coverage and do not apply to the definition of disability under the 鈥渁ctual鈥� or 鈥渞ecord of鈥� disability prongs.

Impairments that are always disabilities

The final rule includes a non-exhaustive list of impairments that will virtually always be found to impose a substantial limitation on a major life activity. These include deafness, blindness, autism, cancer, diabetes, HIV, multiple sclerosis, muscular dystrophy, post-traumatic stress disorder and schizophrenia.

Best practices

If an individual is 鈥渄isabled,鈥� an employer may not discriminate with respect to hiring and all other terms and conditions of employment if the individual is otherwise qualified. Further, the employer must engage in an interactive process with the individual to determine what, if any, reasonable accommodations can be made to enable the individual to perform essential job functions. If an individual is not 鈥渄isabled,鈥� issues of reasonable accommodation and discrimination are never reached.

The ADAAA and the new regulations purposefully shift the focus from whether an individual is 鈥渄isabled鈥� to whether the individual suffered discrimination because of the disability. The number of 鈥渄isabled鈥� employees will grow significantly under the new definitions. Accordingly, employers should approach potential disability issues conservatively by assuming that an impairment is a disability and then exploring reasonable accommodations.

Amy Angel provides employment litigation and advice as an attorney at Barran Liebman LLP. Contact her at 503-276-2195 or at [email protected].