Is Everyone Disabled Now???

The EEOC issued final regulations interpreting the Americans with Disabilities Act Amendments Act (“ADAAA”) on March 25, 2011, and those regulations took effect this week.

The purpose of the amendments was to make it easier for a person to establish that he has a disability under the ADA.  Congress found that persons with many types of impairments – including epilepsy, diabetes, multiple sclerosis, major depression, and bipolar disorder – had been unable to bring ADA claims because they were found not to meet the act’s definition of “disability.”

The amendments will make it easier for people with these conditions to be covered, and ADA defense lawyers expect to see a surge in complaints in the coming months and years as more people who are now suddenly covered file claims. Many companies are now scrambling to get guidance from an ADA compliance defense attorney to ensure they have best practices in place to minimize their risk of exposure to lawsuits.

The final regulations define it three ways: “actual disability”; or a “record of” a past disability; or when an action was taken because the person was “regarded as” having a disability. An ADA compliance & defense attorney can help companies determine what impact these new regulations would have on past cases and claims so they can better protect themselves going forward.

To determine whether a person has an actual disability, the regulations provide “rules of construction” to use when determining if an individual is substantially limited in performing a major life activity, and ADA defense lawyers can help companies determine what sort of potential exposure they may face under the new guidelines.

The rules under the new regulations include:

• The term “substantially limits” requires a lower degree of functional limitation than the standard previously applied by the courts. An impairment does not need to prevent or severely or significantly restrict a major life activity to be considered “substantially limiting.” Nonetheless, not every impairment will constitute a disability, as any ADA compliance defense attorney will tell you.
• The term “substantially limits” is to be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the act.
• The determination of whether an impairment substantially limits a major life activity requires an individualized assessment, as was true prior to the act and has helped many ADA compliance & defense attorneys achieve a successful outcome for a client.
• With one exception (“ordinary eyeglasses or contact lenses”), the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures, such as medication or hearing aids.
• An impairment that is episodic or in remission, if it would substantially limit a major life activity when active.
• In keeping with Congress’s direction that the primary focus of the ADA is on whether discrimination occurred, the determination should not require extensive analysis.

Only time will tell how the courts apply these new regulations. The emphasis will clearly be on providing more, not less, coverage under the act. Businesses and ADA defense lawyers alike are bracing for a surge in new claims.

As a general rule, if you are an employer who has 15 or more employees, the act applies to you. An experienced ADA compliance & defense attorney can work with your company to make sure you have the best policies and procedures in place to minimize exposure under the broadened guidelines.

When claims inevitably arise, it is critical that your litigation team includes an ADA defense lawyer who is well-versed in the new regulations, how they should be applied and interpreted, and how to create the best defense strategy.