California Labor &
Employment Law Blog

Oct. 12 2009

EEOC Issues Proposed ADAAA Regulations

Topics: New Laws & Legislation

The EEOC has issued its long awaited proposed regulations interpreting the Americans With Disabilities Amendments Act of 2008. The proposed regulations explain the new broad standard for determining whether an individual is disabled. Under the proposed regulations, mitigating measures, such as medication or assistive devices, must be disregarded when determining whether an individual is disabled. (The only specific exception is that eyeglasses/contact lenses can be considered.) Thus, it generally is the individual's non-medicated condition that must be considered in analyzing whether the condition substantially limits a major life activity. Furthermore, the meaning of the term "substantially limits" has been relaxed such that it is no longer necessary to show that the condition prevents or even "significantly" or "severely" restricts the individual's ability to perform a major life activity. Instead, it appears to be enough if the individual is limited in ability to perform a major life activity when compared to most people in the general population.

Where work is the major life activity at issue, the proposed regulations explain that the individual need not show that she is limited in her ability to perform a wide range of jobs, but rather that the individual is limited in her ability to perform her job and jobs with similar physical requirements.

Significantly, under the proposed regulations, a condition that is episodic or in remission (such as cancer or epilepsy) is still a disability if it would substantially limit a major life activity when active.

The proposed regulations list several conditions that "will consistently meet the definition of disability:"deafness, blindness, intellectual disability (formerly referred to as mental retardation), partially or completely missing limbs, mobility impairments requiring the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV or AIDS, multiple sclerosis and muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.

Conditions that ordinarily will not be considered disabilities are temporary, non-chronic impairments of short duration with little or no residual effects, such as the common cold or flu, or a sprain or broken bone that is expected to heal completely.

The proposed regulations also expand the meaning of the term "regarded as disabled." To succeed on a claim that the employer discriminated against an employee because the employer "regarded" the employee as disabled, the employee need only show that the employer took adverse action against the employee because the employer regarded the employee as having an impairment. The employee does not have to prove that the employer believed the impairment "substantially limited" the employee's ability to perform major life activities. However, the impairment must be more than minor or transitory (such as a cold or the flu). The proposed regulations provide, by way of example, that if an employer refuses to hire an applicant with a facial tic (even though the employer does not know the facial tic is caused by Tourette's Syndrome), the EEOC would consider the employer to have regarded the applicant as disabled.

The ADAAA and its accompanying proposed regulations greatly expand the meaning of the term disabled under federal law. This change does not greatly impact California employers who are already covered by California's historically broad definition of disability under California's Fair Employment and Housing Act. However, multi-state employers will be impacted. The change is also likely to change the focus of disability discrimination litigation such that there will be much less focus on litigating the issue of whether or not an employee is disabled (most will be) and more focus on the issue of whether the motivation for the employer's adverse action was discrimination or a legitimate, non-discriminatory reason.

The proposed regulations can be accessed here. The proposed regulations are open for a public comment period through November 23, 2009. In addition, the EEOC will be holding four town hall meetings this November in Chicago, San Francisco, New Orleans, and Philadelphia, to share information and gather comments about the proposed regulations. Formore information, visit the EEOC website at www.eeoc.gov.

Although the proposed regulations are not final yet, the ADAAA is final and is current law. As a result, covered employers should ensure that management and/or human resource personnel are trained in understanding and applying the new law when addressing disability issues in the workplace.

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About the Editor

Robin Largent represents employers, including major food and retail companies, in all types of employment litigation: wrongful termination, retaliation, breach of contract, wage and hour (California Labor Code) and unfair competition. She also regularly counsels and advises California employers on issues of compliance with California and federal employment laws.
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