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EEOC Releases Long-Awaited Final Rule on ADAAA

Insight April 13, 2011

On March 24, 2011, the Equal Employment Opportunity Commission released its much anticipated Final Rule implementing the American with Disabilities Act Amendments Act of 2008 (ADAAA.) 

          On March 24, 2011, the Equal Employment Opportunity Commission released its much anticipated Final Rule implementing the Americans with Disabilities Act Amendments Act of 2008 (ADAAA.)  The Final Rule was published in the Federal Register on March 25, 2011.

             With the ADAA, which went into effect on January 1, 2009, Congress directed the EEOC to revise its regulations.  The EEOC issued a Notice of Proposed Rulemaking seeking comment on proposed implementing regulations on September 23, 2009 and received well over 600 public comments in response.  The Final Rule reflects the feedback the EEOC received though it retains many of the provisions from the proposed regulations including: 

  • Providing rules of construction for employers to use when determining if an individual is substantially limited in performing a major life activity including:
    • Construing "substantially limits" broadly in favor of coverage;
    • Determining whether an individual suffers from a disability does not require an extensive analysis, but requires an individualized assessment; and
    • Finding that impairments which last fewer than six months may be substantially limiting.
  • Amending the definition of physical or mental impairment to include immune and circulatory systems; and
  • Amending the "regarded as" prong of disability to include employers that take adverse actions based on an individual's impairment or based on an impairment the employer believes the individual has, unless the impairment is transitory and minor.  This should make it easier for individuals to establish coverage under the "regarded as" part of the definition of "disability" as the law now focuses on how the person was treated rather than on what the employer believed about the nature of the person's impairment.  

             The Final Rule departs from the proposed regulation in several respects including:

  • The Final Rule eliminates the "per se" category of disabilities and instead instructs employers to conduct individualized assessments of impairments in order to determine whether they constitute disabilities.
  • The Final Rule adds to the list of major bodily functions the operation of an individual organ within a body system (for example, the operation of the liver.)
  • The Final Rule adds several new mitigating measures to its non-exhaustive list to include psychotherapy, behavioral therapy, and physical therapy.
  • The Final Rule permits employers to consider the condition, manner, and duration of the impairment in making the disability determination.  

             The ADAA states that the definition of disability should be interpreted in favor of broad coverage of individuals, and the 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.  The ADAA also overturned several Supreme Court decisions that Congress believed had interpreted the definition of "disability" too narrowly, resulting in a denial of protection for individuals with impairments such as cancer or diabetes.

             With the lesser burden on employees to establish that they are disabled, employers must carefully determine whether they have affirmative obligations to provide reasonable accommodations.  Managers will also be required to engage in a meaningful interactive process with individuals who have impairments to ascertain whether the individuals can perform essential job duties with reasonable accommodations by the employer.

            For more information, please contact a member of the firm's employment law group at http://www.rimonlaw.com/practice/employment-law.