On March 24, 2011, the Equal Employment Opportunity Commission ("EEOC") issued its final regulations under the ADA Amendments Act of 2008 ("ADAAA"), which was intended to broaden the scope of coverage afforded by the Americans with Disabilities Act ("ADA"). The regulations are designed to simplify the determination of who has a "disability" and make it easier for individuals to establish protection under the ADA. They set forth "predictable, consistent, and workable standards" by adopting rules of construction to use when determining if an individual is substantially limited in performing a major life activity and disabled under the law. For instance, the regulations provide that mitigating measures, such as assistive devices and medications (with the exception of ordinary eyeglasses or contact lenses), must not be considered when determining whether someone has a disability, and impairments that are episodic or in remission are disabilities if they would be substantially limiting to an individual when active.
The regulations also modify or remove language that proved confusing or had been interpreted in a manner not intended by the EEOC. For example, instead of providing a list of impairments that would "consistently," "sometimes," or "usually not" be disabilities, the final ADAAA regulations - in a significant departure from the approach taken in the prior regulations - list specific types of physical and mental impairments that should easily be concluded to be disabilities under the ADA, including HIV infection, diabetes, epilepsy, cancer, and bipolar disorder. In addition, the regulations make it easier for individuals to establish they are "regarded as" disabled by shifting the focus to how the individual was treated rather than on what an employer believes about the impairment. To aid the public and employers in understanding the new regulations, the EEOC has published Question and Answer guidance as well as a Fact Sheet on its website, www.eeoc.gov.