It has been three years since Congress passed the Americans with Disabilities Act (ADA) Amendments Act of 2008. The law, sometimes known as the ADAAA, went into effect at the start of 2009, yet little changed right away. Why? Because the Equal Employment Opportunity Commission (EEOC), charged with creating regulations and interpreting the ADA Act Amendments, did not complete that work until earlier this year.
Those regulations were finally completed and took effect just before summer 2011. The ADAAA and the new regulations did not change the definition of "disability" that existed under the original ADA. To be disabled today, as before, an employee must have a physical or mental impairment that substantially limits one or more major life activities, a record or history of such impairment, or be regarded by the employer as disabled.
Second, the ADAAA and its new regulations move away from the notion originally central to disability law that each situation must be considered individually and on its own facts and circumstances to prevent discrimination. While that is still the stated premise, it is undermined by the EEOC's declaration that certain impairments will "virtually always" meet the definition of disability, including autism, deafness, blindness, cancer, diabetes, epilepsy and numerous mental illnesses. According to the EEOC, it essentially no longer matters if that employee with epilepsy can perform the job just as well – or even better – than his peer without epilepsy. The epileptic employee is "virtually always" disabled.
Likewise, the new regulations require employers to evaluate whether employees are disabled without taking into account "mitigating factors" like medications used to address illnesses or conditions. Because of this, a diabetic employee who takes insulin and functions just like everyone else must be viewed based on how he or she would function without taking insulin.