Yesterday, the EEOC released its Final Rule implementing the American with Disabilities Act Amendments Act, which we discussed back in September 2008 and which was signed by President George W. Bush on September 25, 2008. The Final Rule, which runs 202 pages long, includes many revisions. But the most significant revisions as discussed in the EEOC’s Fact Sheet are:

• The definition of disability should be interpreted broadly in favor of broad coverage of individuals, in direct contradiction to several Supreme Court decisions that had, according to Congress, too narrowly interpreted the definition of "disability;"
• The determination of whether an individual is disabled should not require an extensive analysis;
• The adoption of "rules of construction" that are to be used when determining whether an individual is "substantially limited" in performing a major life activity. Specifically, "substantially limits":
  • Does not mean an impairment that prevents or severely or significantly restricts a major life activity;
  • Is to be construed broadly;
  • Must be assessed on an individualized basis;
  • Must be assessed without regard to the ameliorative effects of mitigating measures, such as medication or hearing aids (with the notable exception of "ordinary eyeglasses or contact lenses" which may be considered); and
  • May include an impairment that is episodic or in remission if it would substantially limit a major life activity when active.
• A refocusing of the analysis of whether an individual was "regarded as" disabled form what the employer may have believed about the nature of the individual’s impairment to how a person has been treated because of a physical or mental impairment (that is not transitory or minor); and
• The clarification that an individual must have an actual disability or a record of disability to qualify for a reasonable accommodation.

The express purpose of the ADAAA is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA. This purpose was not lost on employees and applicants. As we previously noted, the ADAAA resulted in an immediate increase in disability discrimination charges. We expect this trend to continue.

This makes it all the more important that employers engage in good faith in the interactive process to determine whether a reasonable accommodation exists for applicants or employees with alleged disabilities. The interactive process will often result in the discovery of workable accommodations, but perhaps more importantly it also frequently results in employees and applicants feeling satisfied that no reasonable accommodation actually exists. This satisfaction alone can significantly contribute to an individual’s decision not to file a charge of discrimination.