Yesterday, the Equal Employment Opportunity Commission (EEOC) released the much-anticipated final regulations (pdf) for the ADA Amendments Act of 2008. The EEOC will publish the regulations in the Federal Register today, and they will become effective in 60 days, on May 24, 2011. The EEOC has issued a press release highlighting the release of the new regulations. It also has drafted a "Questions and Answers" guidance sheet and a fact sheet to better aid employers in understanding the final regulations.
Based on our initial reading, the final regulations largely track the statutory changes made by Congress in 2008 and much of what the EEOC initially proposed for comment in September 2009. Notably, the final regulations:
- Emphasize that the definition of "disability" should be interpreted broadly;
- Caution that the question of whether an individual is "substantially limited" in a major life activity "should not demand extensive analysis" in order to meet the standard necessary to establish a disability;
- Expand the definition of "major life activities" through two non-exhaustive lists:
- the first focuses on activities, some of which the EEOC already has recognized (e.g., walking) and some of which are new to these regulations (e.g., sleeping, concentrating, thinking, reading); and
- the other focuses on major bodily functions (e.g., the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions);
- Require that impairments be evaluated in their "unmitigated" state to determine whether the individual is disabled (the exceptions being contact lenses and ordinary eyeglasses);
- Clarify that an impairment that is episodic or in remission is considered a disability if the impairment would substantially limit a major life activity when active; and
- Make it easier for individuals to establish coverage under the "regarded as" prong of the definition of "disability."
Clearly, one of the aims of the new regulations is to take the focus off determining whether an individual is disabled and place it on necessary accommodations for a disabled individual. Indeed, the regulations now state that the question of whether an individual is substantially limited in a major life activity "should not demand extensive analysis."
Perhaps the two most significant changes in the final regulations are the EEOC’s decision to specifically list medical conditions that will "virtually always" constitute impairments covered by the ADA, and its rejection of any minimum duration of time before an individual is considered disabled.
Per Se Disability?
Acknowledging that the determination of disability requires an "individualized assessment," the EEOC lists conditions that will "virtually always" meet the definition of disability. These include autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, and a variety of serious mental disorders. Given their inherent nature, states the EEOC, these impairments will: 1) virtually always impose a substantial limitation on a major life activity; and 2) require an individualized assessment that is "particularly simple and straightforward." The EEOC declined to provide a list of per se disabilities, but as evidenced by the list above, it came close.
Short-term Impairments Could Constitute a Disability?
Although the proposed regulations included a provision stating that short-term impairments, such as a broken bone that is expected to heal fully, do not constitute disabilities, that language was removed from the final rules. Instead, the regulations specifically reject any minimum duration, and the EEOC points out that the duration of an impairment "is only one factor in determining whether the impairment substantially limits a major life activity, and impairments that last only a short period of time may be covered if sufficiently severe." In other words, any impairment—no matter how long the duration—could be considered a disability. Clearly, this issue will be one left for the courts to decide, particularly where the impairment lasts but a few months.