The Americans with Disabilities Act Amendment Act (ADAAA) was passed by Congress in September 2008 to make legislative changes to the original Americans with Disabilities Act of 1990. The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for setting and approving the final set of regulations for the ADAAA. A key goal of the Americans with Disabilities Act Amendments Act (ADAAA) of 2008, effective Jan. 1, 2009, was to focus less on the definition of disability and more on whether employers are meeting their obligations to refrain from discrimination and to provide reasonable accommodations. “Under the new law, the focus is on how the person was treated rather than on what an employer believes about the nature of the person’s impairment,” the U.S. Equal Employment Opportunity Commission (EEOC) said in a statement issued March 24, 2011, to announce the regulations. Individuals receive protection under the Act if they have met one of the three “prongs”—they have an “actual disability”, a “record of” a disability or are “regarded as” a person with a disability.
For employers, (ADAAA applies to employers with over 15 employees) this generally means shifting your approach from one that focuses on verifying that a person has an ADAAA disability, to one that uses the interactive process to see if there’s an effective accommodation that will allow an employee to perform the essential functions of his or her job. There are 9 “rules of construction” that must be applied to determine whether impairment substantially limits a major life activity. The regulations state that determining coverage under the “regarded as” prong does not include the following analysis.
Rules of Construction:
- Rule 1. The term “substantially limits” shall be construed broadly.
- Rule 2. An impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.
- Rule 3. The threshold issue of whether an impairment “substantially limits” a major life activity should not demand extensive analysis.
- Rule 4. The determination of whether an impairment substantially limits a major life activity requires an individualized assessment.
- Rule 5. The comparison of an individual’s performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical analysis.
- Rule 6. The determination of whether impairment substantially limits a major life activity shall be made without regard to the improving effects of justifying measures. Under the amended ADA, employers cannot consider the ameliorative effects of mitigating measures (i.e., medication or a device that improves an impairment) when determining whether an impairment is a disability. For example, an employer may not consider an individual’s use of insulin to control his diabetes when determining whether the diabetes substantially limits the major life activity of eating.
- Rule 7. An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. For example, an individual who has had cancer in the past but is in remission is still considered disabled under ADAAA.
- Rule 8. An impairment that substantially limits one major life activity need not substantially limit other major life activities in order to be considered a substantially limiting impairment.
- Rule 9. The six-month “transitory” part of the “transitory and minor” exception to “regarded as” coverage does not apply to the definition of “actual disability” or “record of disability.” The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting.
Steps Employers Should Take:
- Review job descriptions detailing the essential functions of the job.
- Check record keeping processes to ensure adequate documentation of any and all accommodations requests by employees.
- Review the steps in the interactive process.
- Document reasons for granting/denying an accommodation request.
