The EEOC recently published its long-awaited final regulations (the “Regulations”) and interpretive guidance for the Americans with Disabilities Act Amendments Act (the “ADAAA”), which became effective on January 1, 2009. The Regulations significantly alter the analysis of “disability” under the Americans with Disabilities Act (“the “ADA”) and reflect Congress’ intention to expand the ADA’s coverage. The ADAAA retained the ADA’s definition of “disability” as 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 Regulations, however, alter the interpretation and application of this term in fundamental ways.
For example, the Regulations expanded the list of “major life activities,” to include, among others, eating, standing, thinking, communicating and sleeping. Moreover, “major life activities” now encompasses “major bodily functions.” The EEOC sets forth nine “rules of construction” in the Regulations to aid the analysis of whether an impairment substantially limits one or more major life activities. Further, as required by the ADAAA, the Regulations make it easier for individuals pursuing discrimination claims to establish coverage under the “regarded as” prong of the definition of “disability.”
Although the Regulations do not become effective until May 24, 2011, employers should immediately take them into account in employment decision making, as they will certainly guide EEOC enforcement activities and employee expectations even before the effective date. For more detailed information about the Regulations, see EBG’s comprehensive Act Now Advisory.
The defense of most ADA claims will now focus on whether the applicant or employee is qualified for the job, whether a reasonable accommodation was offered, whether the employer engaged in the interactive process to discuss possible accommodations in good faith, and whether any employer action was caused by an individual’s disability, record of disability, or being regarded as disabled. In most cases, to focus on whether the person has a disability would be misplaced.
To help minimize the risk of potential disability discrimination and failure to accommodate claims, employers should take certain actions:
- Review all job descriptions to assure that they accurately and fully capture all “essential functions” of the job.
- Train supervisors on the new broad coverage of the ADA and require them to enlist the assistance of Human Resources in the “interactive process” to determine whether a reasonable accommodation can be made.
- Always engage in the interactive process when there is an accommodation request and fully document your organization’s efforts during the interactive process.
- Review language in any policies and employee handbook to make sure it is consistent with the ADAAA.
- Review applications and any inquiries that might elicit information about an applicant’s disability, and determine if they are appropriate.
- Contemporaneously document all employment actions, decisions, and corrective action involving an employee who is an individual with a disability or has a record of a disability.