New EEOC Regulations Narrow the Definition of Disability and Make Other Changes to the Americans with Disabilities Act

On September 25, 2008, President Bush signed the Americans with Disabilities Act Amendments Act of 2008, which changed the definition of "disability" by rejecting the holdings in several Supreme Court decisions and portions of EEOC's ADA regulations.  The Amendments do not change ADA's basic definition of "disability," which remains an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment, but does change how these statutory terms are interpreted.
 
The EEOC enacted new regulations to implement the most significant amendments to the ADA, which include:
  • directing the EEOC to revise that portion of its regulations defining the term "substantially limits";
  • expanding the definition of "major life activities" by including two non-exhaustive lists:
    • the first list includes many activities that previously recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating);
    • the second list includes major bodily functions (e.g., "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions");
  • stating that mitigating measures other than "ordinary eyeglasses or contact lenses" shall not be considered in assessing whether an individual has a disability;
  • clarifying that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
  • providing that an individual subjected to an action prohibited by the ADA (e.g., failure to hire) because of an actual or perceived impairment will meet the "regarded as" definition of disability, unless the impairment is transitory (will last six months or less) and minor;
  • providing that individuals covered only under the "regarded as" prong are not entitled to reasonable accommodation; and
  • emphasizing that the definition of "disability" should be interpreted broadly.
Practice Pointer:  All employers are advised to have a policy or policy reference to non-discrimination based on disability, and acknowledging the employer will offer reasonable accommodations to qualified employees with disabilities who require an accommodation to perform the essential functions of their position.  Please contact us if you need assistance with drafting policy language.

Practice Pointer:  Employers must be mindful of their legal obligations whenever confronted with a situation involving an employee or job applicant with a disability, and when receiving a request for reasonable accommodation.  At ZH, we have experience and expertise in responding to these types of situations.  If you are at all uncertain as to how to proceed, please contact us for guidance and assistance.

For additional information on this topic, please contact Kathryn V. Hatfield at KVH@zuckerhatfield.com or Douglas S. Zucker at DSZ@zuckerhatfield.com.