[acb-hsp] ADA Revisions

[Baracco, Andrew W]

The information below came from a Federal Employees newsletter that I receive. I hope that you find it helpful.

Andy
10. Federal Legal Corner: ADA Regulations, Part 1
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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.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated 
to the representation of federal employees worldwide. For more information on Passman & 
Kaplan, P.C., go to http://www.passmanandkaplan.com. 
 
The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees Legal Survival 
Guide, Second Edition, a comprehensive overview of federal employees' legal rights. To order 
your copy, go to http://www.passmanandkaplan.com/CM/Custom/Federal-Employees-Survival-Guide.asp. 
This book originally sold for $49.95 plus s&h, but is now available for $29.95 plus s&h.