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Government LawyersThe newsletter of the ISBA’s Standing Committee on Government Lawyers

January 2012, vol. 13, no. 2

Final regulations for the Americans with Disabilities Amendments Act are now available

On March 25, 2011, the EEOC published its final regulations on the Americans with Disabilities Amendments Act (ADAAA). The regulations may be found at 29 C.F.R., sections 1630.1 through 1630.16. The appendix immediately following section 1630.16 provides definitions and more specific guidance in interpreting and applying the regulations. The new regulations were mandated by the ADAAA, which amended the original Americans with Disabilities Act and became effective January 1, 2009.

The regulations provide that the ADAAA applies to discriminatory employment decisions involving alleged disabilities that occurred on or after January 1, 2009. The kinds of actions that may be brought under the ADAAA include failing to hire or terminating an individual and denying a person with a disability a reasonable accommodation. The regulations follow Congress’ mandate in the ADAAA making it easier for persons to establish they have a disability.

A Question and Answer publication of the EEOC, available at <http://www.eeoc.gov/laws/regulations/ada_qa_final_rule.cfm provides>:

These regulations apply to all private and state and local government employers with 15 or more employees, employment agencies, labor organizations (unions), and joint labor-management committees. [Section 1630.2(b)] Additionally, section 501 of the Rehabilitation Act applies to federal executive branch agencies regardless of the number of employees they have.

Individuals can establish they have a disability by showing that they have a physical or mental impairment that substantially limits one or more major life activities; a record of such a disability; or have been regarded as having such a disability. A physical or mental impairment includes any disorder or condition that affects one or more body systems, including neurological, musculoskeletal, respiratory, cardiovascular, reproductive, digestive, immune, genitourinary, circulatory, hemic, lymphatic, skin, endocrine, intellectual, emotional or mental illness. Major life activities include the operation of major bodily functions, including of the immune system, skin, digestive, neurological, circulatory, and other systems of the body.

An impairment substantially limits a major life activity when a person’s impairment substantially limits the person’s performance of a major life activity as compared to most persons in the general population. The determination must be made on an individualized basis, and medical and scientific evidence can be considered but is not required. Also, an impairment that is episodic or in remission is a disability if the impairment would substantially limit a major life activity when active. These impairments may include epilepsy, hypertension, asthma, diabetes, major depressive disorder, and others.

The new regulations follow the ADAAA’s directive that mitigating measures not be considered in determining whether an impairment substantially limits a major life activity. Mitigating measures can eliminate or reduce the symptoms or impact of an impairment, and can include medication, prosthetics, and assistive technology. Only ordinary eyeglasses and contact lenses cannot be considered as mitigating measures. An employer cannot require a person to use a mitigating measure.

The employer cannot discriminate against a qualified individual. A qualified individual is a person who has the qualifications to perform a certain job, such as having the required educational background, skills, or license required to perform the duties of the position. The question is whether the individual can perform the essential functions of the position held or applied for, with or without a reasonable accommodation. Essential functions of a position are those duties that an employer requires of a person holding the position and those duties that are the reason the position exists.

A reasonable accommodation allows an individual with a disability to perform the essential functions of the position. The accommodation can include assistive technology, a change in start time, or a reallocation of non-essential functions. These accommodations, however, need not impose an undue hardship on an employer. An undue hardship must be a significant financial hardship that affects the employer’s operation or an accommodation that is unduly disruptive or so costly so that it would fundamentally alter the nature or operation of the business.

The EEOC has a help line for persons with questions about the ADAAA. Persons can call 1-800-669-4000 (Voice) and 1-800-669-6820 (TTY). Also, there is a Job Accommodation Network, which can be reached by the Web site <www.askjan.org> or by calling 1-800-526-7234 (Voice) and 1-877-781-9403 (TTY). ■


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