ADA Regulations, Part 1

The ADA Amendments Act of 2008 (ADAAA) was enacted on September, 25, 2008, and became effective on January 1, 2009. The Equal Employment Opportunity Commission (EEOC) issued a notice of proposed rulemaking on September 23, 2009 and the final EEOC regulations were approved and published in the Federal Register on March 25, 2011. This statute has made a number of important changes and makes it easier for an individual to establish that he or she has a disability by expanding the definition of the term "disability". The ADAAA states that the definition of disability should be interpreted in favor of broad coverage of individuals. In the ADAAA, Congress overturned several Supreme Court decisions that Congress believed had interpreted the definition of "disability" too narrowly.

The ADAAA and the final regulations at 29 CFR §1630.2(g) define a disability using a three-pronged approach:

1. A physical or mental impairment that substantially limits one or more major life activities (actual disability), or

2. A record of a physical or mental impairment that substantially limited a major life activity (record of), or

3. When a covered entity takes an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory and minor (regarded as).

To have an actual disability or a record of a disability, an individual must be substantially limited in performing a major life activity as compared to most people in the general population. The ADAAA regulations adopted several rules of construction to use when determining if an individual is substantially limited in performing a major life activity. 29 CFR §1630.2(j). For example, an impairment does not need to prevent or severely or significantly limit a major life activity to be considered substantially limiting; however, not every impairment will constitute a disability. The term "substantially limits" should be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADA. The determination of whether an impairment substantially limits a major life activity requires an individualized assessment. However, in making this assessment, the term "substantially limits" shall be interpreted and applied to require a degree of functional limitation that is lower than the standard for "substantially limits" applied prior to the ADAAA.

In keeping with Congress's direction that the primary focus of the ADA be whether discrimination occurred, the determination of disability should not require extensive analysis. Although the determination of whether an impairment substantially limits a major life activity as compared to most people in the general population will not usually require scientific, medical, or statistical evidence, such evidence may be used if appropriate. An individual need only be substantially limited, or have a record of a substantial limitation, in one major life activity to be covered under the first or second prong of the definition of "disability."

As a result of the changes in the ADAAA, more ADA claims will focus on the merits of the case. The ADAAA does not apply retroactively, but applies to alleged discriminatory acts that occurred on or after January 1, 2009. All of the changes in the ADAAA apply to all titles of the Rehabilitation Act and the ADA. Subsequent articles will discuss other rules of construction regarding an impairment that is transitory and minor and impairments that are episodic or in remission. Additionally, subsequent articles will discuss the expanded definition of major life activity and the role of mitigating measures in the new regulations.