Dept. of Justice Issues New ADA Regulations

August 2016

On August 11, 2016, the U.S. Department of Justice issued long-awaited regulations to incorporate the statutory changes to the Americans with Disabilities Act (“ADA”) as set forth in the ADA Amendments Act of 2008 (“ADAAA”). The new regulations will take effect on October 11, 2016. Although the ADAAA is already in effect, the new regulations help clarify legal obligations for covered entities under title II (state and local governments) and title III (public accommodations) of the ADA, both of which include school districts.

The ADAAA made important changes to the meaning of the term “disability” in order to effectuate Congress’s intent to restore the broad scope of the ADA by making it easier for an individual to establish that he or she has a disability. In the new regulations implementing those changes, the Department of Justice made several major revisions to the meaning and interpretation of the term “disability.” The regulatory revisions are based on specific provisions in the ADAAA or on specific language in its legislative history.

Key provisions of the new regulations include the following:

  • A physical or mental impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.
  • The definition of “major life activities” is expanded through a non-exhaustive list that now specifically includes “writing” and the operation of major bodily functions.
  • Attention Deficit/Hyperactivity Disorder (“ADHD”) has been added as an example of a physical or mental impairment.
  • The term “substantially limits” must be construed broadly in favor of expansive coverage. 
  • The primary legal issue to resolve in a case brought under the ADA should be whether an entity covered under the ADA has complied with its obligations and whether discrimination has occurred, not the extent to which the individual's impairment substantially limits a major life activity.
  • The comparison of an individual’s performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical evidence.
  • The ameliorative effects of mitigating measures other than “ordinary eyeglasses or contact lenses” must not be considered in assessing whether an individual has a disability.
  • An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
  • An impairment that substantially limits one major life activity need not substantially limit other major life activities in order to be considered a substantially limiting impairment.

The full text of the final title II and title III ADAAA implementing regulations can be found here.  The Department of Justice noted that it has adopted, where appropriate, regulatory language that is identical to the revisions to the Equal Employment Opportunity Commission’s (“EEOC”) title I (employment) regulations implementing the ADAAA, which were issued in 2011.

Districts may wish to review their Board Policies regarding prohibition on discrimination to ensure that they are written broadly to encompass discrimination on the basis of disability and do not place limits on the type of disabling conditions that would be afforded protection.

As noted above, the changes brought about by the ADAAA have been in effect for several years, but districts can look to the new examples and detailed guidance set forth in the regulations to better understand their obligations under the ADAAA.

If you have any questions regarding this matter, please call one of our six offices.

F3 NewsFlash prepared by Jonathan P. Read, Kimberly A. Smith and John Norlin.
Jonathan is a Partner in the F3 San Diego office.
Kimberly is a Partner in the F3 Los Angeles office.
John is Special Counsel in the F3 San Diego office.

This F3 NewsFlash is a summary only and not legal advice.  We recommend that you consult with legal counsel to determine how this legal development may apply to your specific facts and circumstances.  Information on a free NewsFlash subscription can be found at www.f3law.com.

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© 2016 Fagen Friedman & Fulfrost LLP

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