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<b><i>BREAKING NEWS:</i></b> Business Community OK with New ADAA Implementation

By Marcia Coyle
April 07, 2011

The business and disability rights communities are uniting behind long-awaited, finalregulations implementing the 2008 Americans With Disabilities Amendments Act. The regulations become effective on May 24, 2011.

Their reaction to the regulations, published on March 25 in the Federal Register by the Equal Employment Opportunity Commission, is a dramatic change from strong criticism, particularly from businesses, of a first attempt in 2009.

'What happened was there is a new commission now,' said management attorney Lawrence Lorber, a partner at Proskauer Rose. 'They pulled back and wrote regulations very consistent with the statute.'

The 2008 ADAA law overturned several U.S. Supreme Court decisions narrowing the definition of disability in the landmark Americans With Disabilities Act. For example, people with cancer, diabetes or epilepsy were denied coverage under the law.

'The regulations developed by the commission to implement the ADAA clarify the requirements of the law for all stakeholders,' said EEOC chair Jacqueline Berrien, an Obama appointee. They also are the result of a bipartisan effort by the EEOC to 'hold true' to the bipartisan intent of Congress, according to Commissioner Constance Barker.

Commissioner Chai Feldblum, an Obama appointee and one of the key negotiators in the drafting of the original ADA and the ADAA, said the regulations would 'work well' both for people with disabilities and employers.

The 2008 statute and the new regulations keep the definition of disability in the original ADA: a physical or mental impairment that substantially limits one or more major life activities; a record or history of impairment or being regarded as having a disability. But the 2008 law made significant changes in how those terms are interpreted, and the regulations implement those changes, according to the EEOC.

For example, the regulations clarify 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. They also make clear that, as under the original ADA, not every impairment will constitute a disability. The regulations include examples of impairments that should easily be concluded to be disabilities, such as HIV infection, diabetes, epilepsy and bipolar disorder.

The regulations also make it easier for people to establish coverage under the 'regarded as' part of the definition of disability. Under the new law, the focus is on how the person was treated rather than on what an employer believes about the nature of someone's impairment.

'The commission is to be commended for undertaking the hard work needed to reach bipartisan agreement that has been a hallmark of the Americans with Disabilities Act for the last two decades,' Randel Johnson, senior vice president of the U.S. Chamber of Commerce said in a statement. 'We know firsthand that these issues can be exceedingly difficult. While we have only begun to review the final regulation, it is clear that the commission gave substantive consideration to our comments and those of other stakeholders.'

The regulations will greatly simplify the determination of whether a person has a disability and allow courts and other decision makers to turn quickly to determining whether unlawful discrimination has occurred in the workplace, according to the American Association of People with Disabilities.

Marcia Coyle writes for The National Law Journal, an ALM affiliate of Employment Law Strategist.

The business

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