The Equal Employment Opportunity Commission (EEOC) has issued its final rule, effective May 24, 2011, implementing the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). The agency’s directive seeks to cement the ADAAA’s expanded scope of workers protected against disability discrimination.

The original ADA (1990) defines “disability” as: a) a physical or mental impairment that substantially limits one or more major life activities; b) a record of such an impairment; or c) being regarded as having such an impairment. The EEOC’s final rule supplies guidelines on how ADAAA will bring a larger number of persons under the ADA’s protections. For instance:

• Previously, an employee needed to show that he is “severely restricted” from carrying out one or more major life activities (e.g, walking, talking, eating) to qualify as “disabled” under the law. Now, a worker needs only to demonstrate he or she is “substantially limited” compared to most people;
• Certain impairments are now almost always to be found to impose “substantial limitations” by definition, including, but not limited to cancer, autism, HIV/AIDS, cerebral palsy, multiple sclerosis, muscular dystrophy, diabetes, epilepsy, intellectual disabilities (formerly called mental retardation), major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder and schizophrenia;
• The determination of whether an impairment substantially limits a major life activity requires an individualized assessment (as was true prior to the ADAAA);
• 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 correcting or helpful effects of mitigating measures, such as medication or hearing aids; and
• An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

The new EEOC rule thus directs the inquiry more toward whether there was a discriminatory act and away from fine points on whether the worker’s condition fits the strict definition of disability. The rule of thumb is to always base personnel decisions on sound business factors with “management radar” on high alert when dealing with such decisions concerning persons saddled with physical or mental impairments.

A knowledgeable employment law attorney can and should assist in understanding what precautions to take.