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ADA Amendment Regulations

New federal laws and proposed regulations will dramatically increase the number of employees and potential employees who may sue employers under the Americans with Disabilities Act (ADA).  When Congress passed the ADA Amendments Act of 2008 (ADAAA) it changed certain provisions of the ADA with an eye towards a more expansive definition of what it means to be “disabled.”  The ADAAA took effect in January 2009.  As part of the ADAAA, Congress charged the Equal Employment Opportunities Commission (EEOC) with promulgating new federal regulations that interpret the amended provisions of the ADA.  Because Congress has specifically tasked the EEOC with promulgating interpretive provisions, those regulations, if reasonable, will go a long way towards determining how courts resolve ADA lawsuits against employers.

The definition of disability is expansive under the new regulations.  As part of the proposed rules, the EEOC has said that “[t]he effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.”  The EEOC’s interpretation of the ADAAA has potentially thrown the doors wide open concerning employees who may be considered “disabled” and are thus entitled to the protections of the ADA, or who can file a lawsuit against their employer claiming discrimination under the ADA.  As an example, in the past someone had to demonstrate disability by showing that they were substantially limited in a major life activity such as seeing, hearing, eating, sleeping, walking, lifting, bending, sitting, speaking, breathing, learning, reading, concentrating, or communicating.  Now the ADAAA includes as “disabled” those who are substantially limited in a “major bodily function” such as the respiratory or circulatory system, even if that condition does not prohibit them from doing anything.  Thus, someone may be disabled under the ADA even if they are not physically limited in any way. 

To determine whether someone is substantially limited under the proposed regulations, a court would make a “common sense” evaluation of how the alleged disabled person is limited as compared to “most people in the general population.”  Someone may be “substantially limited” in a major life activity under the proposed regulations even if they are not limited in performing activities of central importance to daily life, such as those mentioned above.  Moreover, impairments that are in remission or are episodic are considered disabilities if they would substantially limit a major life activity when active.

Someone who takes mitigating measures that ameliorate, or eliminate, limitations caused by the disability, such as the diabetic who takes insulin, is still considered disabled under the proposed regulations if, without the mitigating measures, the limitations would manifest.  Thus, even if someone experiences no limitations or minor limitations after taking mitigating measures, that person is still disabled under the proposed regulations.

Those who are “regarded as” having a physical or mental impairment are also considered “disabled” under the proposed regulations.  Someone may be “regarded as” having a physical or mental impairment if they are subject to a job action such as non-selection for a job position, demotion, or termination, because they are perceived as having a physical or mental impairment, even if they are not perceived as being substantially limited in a major life activity.  As an example, the EEOC states that “[a]n employer that refuses to hire someone with a facial tic regards the individual as having a disability, even if the employer does not know that the facial tic is caused by Tourette’s Syndrome.”

The EEOC has recently published the proposed regulations and has given interested citizens until November 23, 2009 to submit written comments on the proposed regulations.  The EEOC may change some of the proposed regulations based on the written comments it receives.  The EEOC has taken the position that these expansive new provisions to the ADA will not have a substantial impact on the economy, but has also said that “[s]ince the existing research measuring the relevant costs and benefits [of the ADAAA] is limited… the Commission seeks public comment on this issue in order to determine whether further regulatory impact analysis will be required.”  Thus, for employers who believe that they will be affected by the ADAAA, and the proposed regulations, now is the time to speak up.  The proposed regulations contain explanations on how to make written comment to the EEOC and can be found at

If you have questions regarding the ADAAA, please contact any member of Greenebaum’s Labor and Employment Practice Group

To learn more about Blaine R. Blood and his practice, please visit his profile.

Even though the content of the above Greenebaum Doll & McDonald e-bulletin is primarily informative, state and federal law obligates us to inform you that this is an advertisement. You have received this advisory because you are a client or friend of the firm.

About Greenebaum Doll & McDonald PLLC
Greenebaum Doll & McDonald PLLC is a widely-respected business law firm with approximately 180 legal professionals in six offices, serving local, national and international clients in virtually every industry. A forward-thinking business law firm, Greenebaum is committed to the practice of Breakthrough Law®. 

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  • Partner

    Blaine is a partner in the firm's Louisville office and a member of the Labor and Employment Practice Group. Blaine advises clients on employment law matters arising under a broad range of state and federal laws affecting employers ...



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