Professional Service Agreement

EEOC Issues Final Regulations on ADAAA

March 31, 2011

The EEOC has issued final regulations for implementing the ADA Amendment Acts (ADAAA), clarifying many of the provisions contained in legislation that was enacted in January 2009.

The law was designed to make it easier to determine who has a disability covered by the ADA-and make it easier for disabled people to make the case that the ADA covers them.

The likely result of the final regulations: more ADA cases will probably go to trial.

The final ADAAA regulations clarify that:

• The ADA language that a condition must "substantially limit" a major life activity in order to be covered now requires a lower standard than before. An impairment does not need to prevent or severely or significantly restrict a major life activity to be considered "substantially limiting." Nonetheless, not every impairment will constitute a disability.

• The term "substantially limits" is to be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA.

• With one exception ("ordinary eyeglasses or contact lenses"), the determination of whether an impairment substantially limits a major life activity shall be made without regard to the effects of mitigating measures, such as medication or hearing aids.

• An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

• When determining if disability discrimination occurred, courts should focus more on the alleged discrimination, not whether someone is actually disabled.

The ADAAA overturned several Supreme Court decisions that Congress believed had interpreted the definition of "disability" too narrowly, resulting in a denial of protection for many individuals with impairments such as cancer, diabetes or epilepsy.

The ADAAA states that the definition of disability should be interpreted in favor of broad coverage of individuals.

The bottom line effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.

Instead of providing a list of impairments that would "consistently," "sometimes," or "usually not" be disabilities, the final regulations provide the rules to guide the analysis. The result: Some impairments will virtually always constitute a disability.

What to Do Immediately

In light of the changes to the Americans with Disabilities Act and the issuance of the final ADAAA regulations, SESCO recommends that you take the following action:

• Revise/develop job descriptions to ensure that elements of the job listed as essential functions are truly job-related and consistent with business necessity.

• Revise handbook policies to reflect the changes made the by the ADAAA.

• Ensure there is a formalized process in place for addressing requests for reasonable accommodations. Be certain to include the "interactive communication process" in addressing possible accommodations; this involves getting input from the employee regarding possible accommodations. Document each step of the process for exploring, determining, or rejecting accommodations.

• Educate supervisors and managers about the ADAAA changes.

• Advise supervisors and managers to consult with Human Resources (or SESCO) whenever an employee requests an accommodation. Stress that they don't immediately refuse the request or retaliate in any way against the individual for making the request.

• Reconsider past accommodation requests from current employees who were denied accommodation because it was determined that the employee's impairment did not satisfy the ADA's definition of a disability.

• When in a position to take adverse action against an employee with a medical condition, be sure to have well drafted documentation of the legitimate, non-discriminatory reason for the action.

SESCO retainer clients receive annual audits. SESCO consultants will be placing focus on ADAAA compliance in our audits to reduce our clients' potential liability under ADAAA.

If you have questions about ADAAA, contact us at or by phone at 423-764-4127. Also, click here to order SESCO's administrative manual "How to Meet ADAAA Requirements."