Are you in compliance with the new regulations under the ADA Amendments Act (ADAAA) issued on March 25, 2011? If not, you still have time. The effective date of the new regulations is May 24, 2011. The gist of the new regulations is to provide more coverage to more individuals. In fact, one EEOC investigator recently opined that under the new ADAA regulations, everyone is assumed to be disabled. Now, the EEOC will focus on whether discrimination occurred, meaning that employers should not expect an extensive analysis regarding whether a person is “disabled.”
Disability Redefined. The primary change to the Americans with Disabilities Act concerns the broadening of the definition of “disability.”
The regulations now mandate that the definition of “disability” be broadly construed. A disability can be found under three scenarios:
(1) a physical or mental impairment that substantially limits one or more major life activities;
(2) a record (or past history) of such an impairment; or
(3) being regarded as having a disability.
Major Life Activity. One of the most surprising developments is the expansive definition of “major life activity.” A “major life activity” now includes actions such as working, interacting with others and concentrating, as well as the operations of major bodily functions. The final regulations state that major bodily functions include the operation of an individual organ within a body system ( e.g., the operation of the kidney, liver, or pancreas). As a result of the ADAAA’s recognition of major bodily functions as major life activities, it will be easier to find that individuals with certain types of impairments have a disability. For example, if an individual has difficulty performing a “class or broad range of jobs in various classes”, he is considered disabled even if he can perform the specific aspects of his current position because he is substantially limited in the major life activity of working.
“Substantially Limits” is Now Pretty Moderate. The term “substantially limits” is to be construed broadly and now requires a lower degree of functional limitation. Each matter requires an individualized assessment. In fact, an impairment need not prevent or severely or significantly limit a major life activity in order to constitute a disability, leaving practitioners to wonder if “substantially limits” now means “moderately limits.”
The EEOC has issued a number of summaries to assist practitioners navigate the new rules. For more information, please visit the Equal Employment Opportunity website at http://www.eeoc.gov/laws/regulations/ada_qa_final_rule.cfm. To learn more about the new ADAA regulations and to determine if your individualized assessment is valid, contact Rachel Steely at [email protected] or the other Labor and Employment professionals at Gardere Wynne Sewell.
