April 5, 2011

ADAA Regulations Issued – Discrimination is the Focus

The ADA Amendments Act of 2008 (ADAA) was enacted September 25, 2008.  This law amended the Americans with Disabilities Act (ADA) which became law on July 26, 1990 (see ADA Amended from the October, 2008 Benefit Beat).  On March 25, 2011, final regulations implementing the ADAA were issued.  These regulations become effective on May 24, 2011. 

Generally, to be protected by the ADAA, the individual:

  1. Has a physical or mental impairment that substantially limits one or more major life activities;
  2. Has a record of a physical or mental impairment that substantially limits a major life activity; or
  3. Is regarded as having an actual or perceived physical or mental impairment.

Over the years since the ADA was enacted, the Courts have construed the law very narrowly.  The ADAA was enacted in an effort to bring the law back to its original intent.  Consistent with this theme, the recently enacted regulations focus on broadening the scope of the law’s protection.  What this means for employers is that their focus should be less on whether someone is covered by the law, and more on ensuring that it is not discriminating against the individual.  Said another way, employees will have limited obligations to prove that they are protected by the law.  The burden will be on the employer to ensure that they have not discriminated against protected individuals. 

The final regulations expand the definition of major life activity.  The regulations clarify that to be protected by the ADAA, the disability need only impact a discreet major life activity, and not multiple life activities.  Examples of major life activities include: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working.  According to the final regulations, major life activities also include the operation of major bodily functions, including functions of the immune system, special sense organs and skin, normal cell growth, digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions, as well as the functionality of an individual organ within a body system.

The expanded scope of the ADAA has significant implications for employment purposes.  It also has implications for employee benefits, particularly as it relates to leave entitlement.  It may be that a reasonable accommodation under the ADAA is a leave of absence which may extend beyond otherwise available family and medical leave. 

Separate from these regulations, a question remains outstanding about when employers can request medical information.  Generally, pursuant to the ADA, medical information can only be requested from an employee if it is fully voluntary.  This leaves open questions, particularly as it relates to wellness programs and health risk assessments (see Financial Incentives for Wellness Program Participation: Employers Beware, from the April 2011 Benefit Beat).

Additional Information about ADAA Final Regulations:


The information contained in this Benefit Beat is not intended to be legal, accounting, or other professional advice, nor are these comments directed to specific situations.

As required by U.S. Treasury rules, we inform you that, unless expressly stated otherwise, any U.S. federal tax advice contained in this Benefit Beat is not intended or written to be used, and cannot be used, by any person for the purpose of avoiding any penalties that may be imposed by the Internal Revenue Service.

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