The Equal Employment Opportunity Commission (EEOC) issued finalized regulations implementing the changes made by the ADA Amendments Act (ADAAA), which went into effect on Jan. 1, 2009. The regulations are intended to simplify the determination of whether an individual has a “disability” for purposes of protection under the ADA. The regulations keep the ADA’s definition of the term “disability” as a physical or mental impairment that substantially limits one or more major life activities, a record or past history of such an impairment, or being regarded as having a disability.
One of the most notable changes is that the final regulations no longer state that certain impairments will consistently be considered disabilities. However, the regulations do still list a number of impairments that usually will be considered disabilities as defined by the ADA, including epilepsy, diabetes, cancer, HIV infection and bipolar disorder.
Importantly, the regulations also adopt “rules of construction” to use when determining whether an individual has a disability. For example, according to the EEOC, the principles provide that an impairment need not prevent or severely or significantly restrict performance of a major life activity to be considered a disability. Additionally, whether an impairment is a disability should be construed broadly, to the maximum extent allowable under the law. The principles also provide that, with one exception (ordinary eyeglasses or contact lenses), “mitigating measures,” such as medication and assistive devices like hearing aids, must not be considered when determining whether someone has a disability. Additionally, impairments that are episodic (such as epilepsy) or in remission (such as cancer) are disabilities if they would be substantially limiting when active.
Among other changes, the regulations also clarify that the term “major life activities” includes “major bodily functions,” such as functions of the immune system, normal cell growth and brain, neurological and endocrine functions. The regulations also make it easier for individuals to establish coverage under the “regarded as” part of the definition of “disability.”
These final regulations become effective on May 24, 2011.
On March 7, 2011, the U.S. Supreme Court declined to consider the issue of whether ERISA’s anti-retaliation provision found under ERISA Section 510 protects employees that make unsolicited internal complaints about how their employers administer their benefit plans. ERISA Section 510 specifically refers to interference with protected rights or a claim for breach of fiduciary duty. In the case of Edwards v. A.H. Cornell & Son Inc., U.S., No. 10-732, an employee complained that her employer was administering its health plan on a discriminatory basis, was misrepresenting to employees the cost of health insurance coverage and enrolling non-citizens in the ERISA plan. The employee was subsequently fired and she brought suit under the Anti-retaliation provision of ERISA Section 510. The Third Circuit had previously ruled in the case that ERISA Section 510 provides no protection to employees who make unsolicited, informal complaints about alleged ERISA violations. The Department of Labor had argued that ERISA Section 510 should be interpreted in such a way so that employers are not permitted to terminate an employee when an employee complains about a possible ERISA violation. Now that the Supreme Court has declined to hear the case, the decision of the Third Circuit stands, meaning that employees who wish to bring a suit under ERISA Section 510 must first exhaust all available plan procedures before going to court.