ADAAA Regulations Represent Increasing Risk for Employers

May 17, 2011, 10:46 AM

The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) and regulations recently issued by the U.S. Equal Employment Opportunity Commission (EEOC) significantly change the landscape for employers dealing with medical conditions of employees and applicants for employment.

The key changes provided by the ADAAA and the EEOCs new regulations expand the definition of disability to cover virtually anyone with a medical condition. Indeed, prior to the ADAAA and the EEOCs new regulations, the ADA defined disability as, among other things, a physical or mental impairment that substantially limits a major life activity. The ADAAA and the new regulations maintain this language but impose a much lower threshold for satisfying this requirement.

For example, the original list of major life activities was short and conservative. The ADAAA and new EEOC regulations add to this conservative list with activities such as bending, thinking, reading, sitting, and interacting with others. The ADAAA also overrules prior Supreme Court decisions, including eliminating from consideration the positive effects of mitigating measures.

The EEOC regulations also instruct that an employers focus should be on whether it has met its ADAAA obligations and not whether an individuals impairment substantially limits a major life activity. Indeed, the EEOC requires that substantial limitation be determined by a common sense assessment of the individuals ability to perform and that a lesser degree of limitation is required for this analysis.

The ADAAA does not change an employers non-discrimination and reasonable accommodation obligations, but it makes them applicable to a much larger group of employees and applicants for employment. As a result, employers must be aware of the increased risk of claims and should take steps to ensure that human resource professionals and front line supervisors are aware of these changes. --David J. Sullivan