You will recall that Congress enacted the Americans with Disabilities Act Amendments Act (“ADAAA”) on September 25, 2008, effective January 1, 2009. In so doing, Congress expressly rejected several Supreme Court decisions that had narrowly construed the term “disability” by, among other ways, holding that mitigating measures were to be considered in assessing whether an impairment was “substantially limiting.” Armed with statistics about employer successes, and after heavy lobbying by disability rights advocates, Congress responded with the new law which substantially broadened the scope of the ADA.

On March 24, 2011, the Equal Employment Opportunity Commission’s long-awaited regulations under the ADA Amendments Act issued in final form. The regulations will become effective on May 24, 2011. Much of the new regulations and accompanying guidance is unsurprising and comports with the language of the ADAAA. For example:

  • the statute is to be construed broadly;
  • employers should focus on accommodations, as opposed to questioning whether someone is disabled; and
  • mitigating measures including medicine, other treatments, and prosthetic devices must be set aside in analyzing whether an individual is “disabled.”

Further consistent with ADAAA, the new regulations add several new activities to the list of major life activities covered by the ADA, including “sleeping, ... concentrating, thinking, [and] communicating.”

The ADAAA had already expanded the concept of “major life activities” to include “the operation of major bodily functions” such as the “immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” The new regulations add three more major life activities – “sitting, reaching and interacting with others” – and include more “major bodily functions” of the special sense organs, skin, genitourinary, cardiovascular, hemic, lymphatic and musculoskeletal systems.

In these regulations, the EEOC also listed conditions that, according to the EEOC, will “virtually always” be covered impairments including 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.

It is also clear now that any impairment – no matter how brief in duration – can be a covered disability.

A New And Expansive Approach To “Substantially Limits”

The ADAAA and the EEOC’s regulations also extended coverage to individuals with episodic impairments or conditions in remission, and provided a non-exhaustive list of examples, including epilepsy, multiple sclerosis, cancer, and psychiatric disabilities such as major depressive disorder, bipolar disorder, and post-traumatic stress disorder.

Impact Of New Regulations On Retail Employers

Retail employers are far less likely to prevail in court by arguing that an employee is not disabled and therefore is not covered under the ADA and/or does not require accommodation.

  • Now more than ever, Retail employers must focus on reasonable accommodation, and on whether an individual with a physical or mental condition is otherwise qualified to perform essential job functions, with or without reasonable accommodation. This means employers must reassess their job descriptions, job qualification standards, and reasonable accommodation process (including leave of absence procedures) to ensure that they are current and defensible.
  • Retail employers must focus on testing procedures. That includes physical ability tests, which may adversely impact persons with disabilities, or at the very least require accommodation upon request. Likewise, pencil and paper tests should be reevaluated in light of ADAAA, no matter what skills they purport to measure. Some such tests are rooted in personality tests, even the most sophisticated of which may run afoul of ADA’s medical inquiry and examination proscriptions.
  • Lawyers defending ADA cases in court must, in most cases, shift the focus away from whether or not the plaintiff is disabled. Making that argument will remain a powerful urge, particularly (although not exclusively) when the employer believes the individual is exaggerating the effects of his or her impairment. Now, however, to prevail in court on summary judgment or at trial, the employer must typically focus its arguments on accommodation – i.e. the fact that the employer made accommodation, the plaintiff failed to request accommodation, the plaintiff declined accommodation, or the plaintiff failed to participate meaningfully in the accommodation process, etc.
  • Documentation has become even more important, along with training. If a supervisor fails to recognize an employee’s request for accommodation, the employer may well be liable – even absent evidence of intentional discrimination.
  • Lastly, the class action epidemic that continues in most parts of the country will now likely expand further to encompass mass actions under ADAAA. We can also expect the EEOC to bring additional disability discrimination and accommodation actions against Retail employers pursuant to a pattern and practice theory.