An Acronym the Fonz would Love: the ADAAA

Ok, perhaps I could have tried harder with that title. You win.

With the release of the final rule of the Americans with Disabilities Act Amendments Act (ADAAA) on March 24th, the EEOC has provided employers with regulations on how the ADAAA is to be implemented. Luckily, the final rule is scaled back from the proposed rule in several areas, most importantly in the definition of disability.

In the final rule, the EEOC stepped away from the idea that certain impairments would consistently meet the definition of a disability. Instead, the EEOC provided a list of nine "rules of construction" intended to help guide the determination of what constitutes a disability. The EEOC did provide examples of impairments that could easily be determined to be disabilities including epilepsy, diabetes, cancer, HIV infection, and bipolar disorder.

Here is a link to the EEOC fact sheet on the final rule: http://www1.eeoc.gov//laws/regulations/adaaa_fact_sheet.cfm?renderforprint=1

Here is an updated link to the final rule: http://www.federalregister.gov/articles/2011/03/25/2011-6056/regulations-to-implement-the-equal-employment-provisions-of-the-americans-with-disabilities-act-as#p-3

The Nine Rules of Construction:

- Section 1630.2(j)(1)(i): Broad Construction; not a Demanding Standard - The term "substantially limits" is to be construed broadly, with the intent of expansive coverage as opposed to being a demanding standard.

- Section 1630.2(j)(1)(ii): Significant or Severe Restriction Not Required; Nonetheless, Not Every Impairment Is Substantially Limiting - The impairment and limitations should be compared to most of the general population to determine if it is in fact a disability.

- Section 1630.2(j)(1)(iii): Substantial Limitation Should Not Be Primary Object of Attention; Extensive Analysis Not Needed - Employers should focus more on compliance as opposed to whether an individual's impairment substantially limited a major life activity.

- Section 1630.2(j)(1)(iv): Individualized Assessment Required, But With Lower Standard Than Previously Applied - Employers must assess each individual to determine if the impairment substantially limits a major life activity.

- Section 1630.2(j)(1)(v): Scientific, Medical, or Statistical Analysis Not Required, But Permissible When Appropriate - It is not necessary for employers to utilize a scientific, medical, or statistical analysis when determining whether or not the impairment substantially limits a major life activity.

- Section 1630.2(j)(1)(vi): Mitigating Measures - Employers should not consider mitigating measures (with the exception of ordinary eyeglasses and/or contact lenses), including whether or not measures exists, but the individual refuses to use them. The EEOC provides examples of psychotherapy, behavioral therapy, and physical therapy to the list of mitigating measures employers should not consider in determining if there is a disability.

- Section 1630.2(j)(1)(vii): Impairments That Are Episodic or in Remission - Employers should remember that even if the impairment is in remission or is episodic, it still may be considered a disability if it would substantially limit a major life activity when active.

- Section 1630.2(j)(1)(viii): Substantial Limitation in Only One Major Life Activity Required - If the impairment only substantially limits one major life activity, it is sufficient to be considered a disability.

- Section 1630.2(j)(1)(ix): Effects of an Impairment Lasting Fewer Than Six Months Can Be Substantially Limiting - Employers should remember that even transitory or minor impairments may be significant and could be "sufficiently severe" and thus warrant disability status.


Expansion of the definition of “major life activities” through two non-exhaustive lists:

—The first list includes activities such as caring for oneself, performing manual tasks,seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working, some of which the EEOC previously identified in regulations and sub-regulatory guidance, and some of which Congress additionally included in the Amendments Act;

—The second list included major bodily functions, such as functions of the immune system, special sense organs, and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions, many of which were included by Congress in the Amendments Act, and some of which were added by the Commission as further illustrative examples.