The Equal Employment Opportunity Commission (EEOC) has issued final Americans with Disabilities Act (ADA) regulations and accompanying interpretive guidance to implement the ADA Amendments Act of 2008. The ADA Amendments Act rejected the holdings in several Supreme Court decisions and portions of the EEOC’s ADA regulations, thereby making it easier for an individual to establish that he or she has a disability under the Act. Among many other changes, the final regulations list nine rules of construction to determine if an individual is “substantially limited” in a major life activity. Likewise, the regulations offer a long list of impairments which, it should be “easily concluded,” substantially limit a major life activity.
Although the EEOC had proposed altering the definition of the major life activity of “working,” the final regulation keeps the current definition intact (“class of jobs or broad range of jobs”). The EEOC also had proposed protections for individuals with “symptoms” of an impairment, but that language was not included in the final regulation. Regarding the amount and type of evidence needed to establish a disability, the EEOC clarified that the presentation of scientific, medical, or statistical evidence is not prohibited but is also not usually required to compare an individual’s performance of a major life activity to most people in the general population. The final regulations are effective May 24, 2011.
Source: Final rule, 76 Fed. Reg. 16,978 (Mar. 25, 2011)
[Editor's Note: An EEOC Q &A on the regulations is available at the first link below; a fact sheet is at the second link.
Last fall, NSBA staff and members of the Council of School Attorneys met with two EEOC Commissioners regarding the proposed ADA regulations. Commissioner Feldblum asked NSBA whether school districts typically directly ask an employee whether she has a disability when she has acted unusually at work, and might be displaying a symptom of a disability, but has never disclosed having a disability. NSBA responded in the below letter that in this instance school districts typically do not ask the employee if he or she has a disability.
In the final regulations, the EEOC did not state whether employers have an affirmative obligation to ask employees directly if they have a disability if they have exhibited behavior that might be a symptom of a disability. As mentioned above, however, the EEOC did reject proposed language that an employee would be “regarded as having such an impairment” in violation of the ADA when an employer makes an employment decision based on the symptoms of an unknown impairment. While not exactly on point, the EEOC did state that “individuals requesting accommodation must provide certain supporting medical information if the employer requests it, and that the employer is permitted to do so if the disability and/or need for accommodation are not obvious or already known.” NSBA's letter to EEOC Commissioner Feldblum is available at the third link below.]