Last Friday, the Equal Employment Opportunity Commission issued final rules under the ADA Amendments Act of 2009. The new regulation implement changes made by ADAAA to the definition of protected disabled persons under the ADA. ADAAA was adopted in response to concerns among legislators that courts were defining disability in too narrow a manner, deciding many ADA cases on this threshold issue rather than looking at whether the plaintiff was not reasonably accommodated, or otherwise discriminated against.
When issued in proposed form, the EEOC's ADAAA rules provoked a number of questions and criticisms from employer groups, who claimed that the agency exceeded its authority in describing the definition of disabled persons. Many of these comments centered on a list of medical conditions that the EEOC contended would be considered per se disabilities. In response to criticism that this position removed the individual analysis required under the ADA, the final rules restore this requirement, describing the list of medical conditions as examples of impairments that will usually be considered disabilities.
The new regulations also remove a number of illustrations that caused confusion among employers and advocates for the disabled. Among these deletions was a list of conditions generally not considered to be disabilities. The EEOC also deleted a definition of the ability to work as a substantial limitation of a major life activity. This change will likely result in the continuation of the previous definition, requiring that the individual be excluded from a class of jobs.
Perhaps most troubling for employers was the EEOC's refusal to set a minimum duration for a medical condition to be deemed an ADA disability. The agency maintained that an impairment is not a disability if it is both minor and transitory, meaning that even a condition lasting a few months can be an ADA disability if it presents a serious limitation to the individual. For example, the EEOC confirmed that pregnancy complications can be ADA disabilities despite the fact that by definition they are limited to a duration measured in months.
The final rules contain an expansive definition of persons protected under the ADA's "regarded as" disabled definition. An employee or applicant is regarded as disabled if the employer considered them to have an impairment, even if such impairment does not significantly limit a major life activity. The EEOC stated that unless the plaintiff is alleging failure to reasonably accommodate, demonstrating that he/he was regarded as disabled is all that will be necessary to fall under the ADA's protections.
ADAAA has already contributed to a significant increase in the number of ADA charges filed with the EEOC. In most cases, employers will not be able to defend ADA litigation on the basis that the plaintiff's condition is not serious enough to fall under the law's protections. Instead, litigation will shift to more fact-based issues on the employer's reasons for employment decisions taken, and why certain requested accommodations were not granted.