The business and disability rights communities are uniting behind long-awaited, final regulations implementing the 2008 Americans With Disabilities Amendments Act.
Their reaction to the regulations, published today in the Federal Register by the Equal Employment Opportunity Commission, is a dramatic change from strong criticism, particularly from businesses, of a first attempt in 2009.
“What happened was there is a new commission now,” said management attorney Lawrence Lorber, a partner at Proskauer Rose. “They pulled back and wrote regulations very consistent with the statute.”
The 2008 law (ADAA) overturned several Supreme Court decisions narrowing the definition of “disability” in the landmark Americans With Disabilities Act (ADA). For example, individuals with cancer, diabetes or epilepsy were denied coverage under the law.
“The regulations developed by the Commission to implement the ADAA clarify the requirements of the law for all stakeholders,” said EEOC Chair Jacqueline Berrien, an Obama appointee. They also are the result of a bipartisan effort by the EEOC, to “hold true” to the bipartisan intent of Congress, according to Commissioner Constance Barker. Commissioner Chai Feldblum, an Obama appointee and one of the key negotiators in the drafting of the original ADA and the ADAA, said the regulations would "work well" both for people with disabilities and employers.
The 2008 statute and the new regulations keep the definition of “disability” in the original ADA: a physical or mental impairment that substantially limits one or more major life activities; a record (or past history) of such an impairment, or being regarded as having a disability. But the 2008 law made significant changes in how those terms are interpreted, according to the EEOC, and the regulations implement those changes.
For example, the regulations clarify that the term “major life activities” includes “major bodily functions,” such as functions of the immune system, normal cell growth, and brain, neurological and endocrine functions. They also make clear that, as under the original ADA, not every impairment will constitute a disability. The regulations include examples of impairments that should easily be concluded to be disabilities, such as HIV infection, diabetes, epilepsy and bipolar disorder.
The regulations also make it easier for individuals to establish coverage under the “regarded as” part of the definition of “disability.” 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 Commission is to be commended for undertaking the hard work needed to reach bipartisan agreement that has been a hallmark of the Americans with Disabilities Act for the last two decades,” said Randel Johnson, senior vice president of the U.S. Chamber of Commerce in a statement. “We know firsthand that these issues can be exceedingly difficult. While we have only begun to review the final regulation, it is clear that the Commission gave substantive consideration to our comments and those of other stakeholders.”
The regulations will greatly simplify the determination of whether a person has a disability and allow courts and other decision makers to turn quickly to determining whether unlawful discrimination has occurred in the workplace, according to the American Association of People with Disabilities (AAPD).
“Many people with disabilities who are working and many jobseekers with disabilities who are ready, willing and able to work are now clearly protected from unlawful discrimination,” said AAPD Acting President and Chief Executive Officer Helena Berger in a statement.
The regulations are unlikely to cause difficulties for employers, said Proskauer’s Lorber. They do not change the substance of the 2008 act, and “employers have been living with the act for two years now,” he added. The act itself triggered more litigation, he said, but the regulations likely will have a “marginal” effect on the amount of litigation.
“They will provide clarity for employers, and hopefully sort of settle issues as to what is covered and what employers have to do,” said Lorber.