On March 24, 2011, the Equal Employment Opportunity Commission’s long-awaited regulations under the ADA Amendments Act (“ADAAA”) issued in final form, for publication in the Federal Register. The regulations will become effective sixty days thereafter, on May 24, 2011. Plaintiffs' lawyers will likely argue that the new regulations mean that essentially anyone with a permanent or chronic physical or mental impairment will be protected by the ADA. Employers will thus have to take care to avoid any discrimination claim by such persons and to carefully monitor reasonable accommodation requests.
Much of the new regulations and accompanying guidance is unsurprising and comports with the language of the ADAAA. For example:
- the statute is to be construed broadly;
- employers should focus on accommodations, as opposed to questioning whether someone is disabled; and
- mitigating measures including medicine, other treatments, and prosthetic devices must be set aside in analyzing whether an individual is “disabled.”
- What is surprising, and doubtless game-changing, is the EEOC's decision to eliminate the "substantially limits a major life function" requirement when the claim is for discrimination, and not a reasonable accommodation request. Moreover, even when reasonable accommodations are at issue, the definition of a covered disability is so broad, it is hard to imagine a condition which is not covered. In addition, the EEOC included a list of conditions which it said will “virtually always” be covered.
If you missed the webinar on March 29, 2011, or would like to discuss the new regulations further, please join us for an in-person breakfast briefing that will feature a recommended action plan for employers to help ensure compliance. For further ADAAA updates, please contact the Seyfarth attorney with whom you work or any Labor & Employment or Employee Benefits attorney on our website.
Lawrence P. Postol is a partner and litigator in the Labor and Employment Practice in the firm's Washington, D.C. office. Mr. Postol has handled ADA, FLMA, FLSA, ERISA and OSHA litigation and has defended against claims for race, age, sex, and disability discrimination. Mr. Postol has written extensively on the ADA, including for SHRM and the American Association For Corporate Counsel. Mr. Postol has successfully argued over two dozen cases in the United States Court of Appeals and two cases before the United States Supreme Court.
Reenah L. Kim is an associate in the Labor and Employment Practice in the firm's Washington, D.C. office. Ms. Kim's practice areas comprise general civil and complex commercial litigation, with a focus on labor and employment matters. She has represented employers at all stages of litigation, including successful dispositive motions practice and appellate briefing, in various types of cases involving claims of race, national origin, gender, disability, and age discrimination, retaliation, hostile work environment, wrongful termination, and claims under federal and state whistleblower laws.
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