EEOC Releases Final ADAAA Implementing Regulations
March 31, 2011
In the spirit of spring, the implementing regulations for the ADA Amendments Act (ADAAA) are somewhat sunnier than the proposed regulations initially presented by the EEOC in the fall of 2009. Published on March 25, 2011, the final regulations specifically address some of the concerns raised by employer advocacy groups in response to the proposed regulations. While there is no question that the ADAAA's expanded definition of "disability" makes it easier for an employee to trigger statutory protections, the final regulations clarify that though purposefully broad, the ADAAA is not limitless.
- Review disability and leave policies in employee handbooks and adopt ADAAA modified definitions.
- Audit internal complaint procedures to ensure that employees know how to ask for a reasonable accommodation (and be sure to monitor and document the interactive process with each individual).
- Discourage your management and human resources teams from making assumptions (i.e., "playing doctor") – if, after careful analysis, it is unclear whether an employee is "disabled," save that question for another day (preserving your rights in the event of a legal challenge) and focus instead on reasonable accommodation obligations.
- Retain all medical information confidentially and separate from other personnel information. Remember that besides the ADA, there are other laws that limit or prohibit an employer's access to medical information such as HIPAA, GINA, the FMLA, as well as state and local privacy laws.
The ADAAA's expansion of the ADA, which became effective on January 1, 2009, caused much concern to employers. In particular, the ADAAA's expansion of the definitions of "disabled" and "regarded as" disabled created great unease because it seemed to extend the ADA's protection to people who would not ordinarily be considered "disabled" or requiring protection from disability discrimination. Proposed implementing regulations, issued by the EEOC for review and comment in September 2009, did little to allay these concerns. After much criticism of the proposed regulations by employer and disability advocates alike, on March 25, 2011, the EEOC released the final regulations, which will become effective May 24, 2011. While the final regulations do not respond to all of the stated concerns, they are on the whole more favorable than the proposed regulations. As noted by the EEOC, "the final regulations modify or remove language that groups representing employer or disability interests had found confusing or had interpreted in a manner not intended by the EEOC."
The keys to the final regulations are their definitions and rules of construction that help define employers' obligations under the ADAAA. Following are some of the final regulations' key provisions:
- The determination of whether an employee is "disabled" remains a fact specific, individual inquiry, but there are some conditions that will virtually always constitute a disability, including epilepsy, diabetes, cancer, HIV infection, post-traumatic stress disorder, intellectual disability, obsessive-compulsive disorder and bipolar disorder.
- The term "substantially limits" is to be construed broadly in favor of expansive coverage and an individual's condition must be viewed without the benefit of any ameliorative or mitigating measures (with the exception of ordinary eyeglass or contact lenses). While every impairment is not a disability, that an employee can minimize the impact of the impairment (for instance, minimizing the impact of epilepsy by taking anti-seizure drugs) is not part of the analysis.
- An impairment that flares up intermittently or is in remission may nevertheless be a disability if the condition, when active, would be a disability. It is important to note, though, that these types of intermittent or remissioned impairments are treated differently from transitory and minor conditions, which are still not disabilities.
- The determination of whether an individual is disabled should not require an extensive analysis. The EEOC has indicated that the primary focus should not be on whether the individual's impairment constitutes a disability. Rather, the final regulations emphasize that the primary focus in determining whether there has been a violation should be on whether the employer has complied with its legal obligations.
- An employee will be "regarded as" having a disability if the employer allegedly takes an action based upon that disability (whether actual or perceived). On the other hand, to be qualified for a reasonable accommodation, an individual must actually have a disability or record of an actual disability.
While employers may not be pleased with the substance of part or all of the final regulations, the additional clarity that they provide should help employers seeking to evaluate their legal obligations.