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LEGAL UPDATE: What employers need to know about the new ADAAA

By: Dean F. Falavolito, Esq.

The ADA Amendments Act of 2008 (ADAAA) officially took effect on May 24, 2011. The new law made significant changes to the definition of “disability” under the Americans with Disabilities Act (ADA).

The new regulations make it easier for those seeking protection under the ADA to establish they have a disability. Toward that end, the regulations overturn prior Supreme Court decisions that lawmakers felt had interpreted the definition of “disability” too narrowly.

The ADA’s original definition of the term “disability” is a physical or mental impairment that substantially limits one or more major life activities; a record (or past history) of such an impairment; or being regarded as having a disability.

The ADAAA implements changes Congress made regarding how those terms should be interpreted, including the adoption of “rules of construction” that determine if an individual is substantially limited in performing a major life activity. Within these rules, an impairment:

  1. Does not need to prevent or severely restrict a major life activity to be considered “substantially limiting.”
  2. Requires an individualized assessment to determine whether it substantially limits a major life activity.
  3. Will be determined to limit a major life activity without regard to ameliorative effects of “mitigating measures,” such as medication or hearing aids.
  4. Shall be considered a disability even if episodic or in remission as long asit would substantially limit a major life activity when active.
  5. Should not require extensive analysis to determine if it is a disability.
  6. Will have its insurance coverage based on how the person has been treated rather than on what an employer may have believed about the nature of the impairment.

The final regulations differ from the Notice of Proposed Rulemaking (NPRM), clarifying or removing language that groups representing employer or disability interests had found confusing.

For example: Instead of providing a list of impairments that would “consistently,” “sometimes,” or “usually not” be disabilities, the final regulations provide the aforementioned rules of construction to explain how some impairments will virtually always constitute a disability. The regulations also provide examples of such impairments as well as examples of individuals who could be considered substantially limited in working.

For a comprehensive and full analysis of these regulations, please contact Dean F. Falavolito, co-chair of Burns White’s Employment Law Practice Group.

In addition, please consult the following important links:

U.S. Equal Employment Opportunity Commission (EEOC) fact sheet on the final regulations implementing the ADAAA

The Federal Register’s complete list and definitions of the ADAAA regulations