28 CFR Parts 35 and 36 Amendment of ADA Title II and Title III Regulations To Implement ADA Amendments Act of 2008 - Final Rule

I. Executive Summary

Purpose
This rule is necessary in order to incorporate the ADA Amendments Act’s changes to titles II (nondiscrimination in State and local government services) and III (nondiscrimination by public accommodations and commercial facilities) of the ADA into the Department’s ADA regulations and to provide additional guidance on how to apply those changes.

Legal Authority
The ADA Amendments Act was signed into law by President George W. Bush on September 25, 2008, with a statutory effective date of January 1, 2009. Public Law 110–325, sec. 8, 122 Stat. 3553, 3559 (2008). The Act authorizes the Attorney General to issue regulations under title II and title III of the ADA to implement sections 3 and 4 of the Act, including the rules of construction set forth in section 3. 42 U.S.C. 12205a.

Summary of Key Provisions of the Act and Rule
The ADA Amendments Act made important changes to the meaning and interpretation of the term ‘‘disability’’ in the ADA 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. See Public Law 110–325, sec. 2(a)(3)–(7). The Department is making several major revisions to the meaning and interpretation of the term ‘‘disability’’ contained in the title II and title III ADA regulations in order to implement the ADA Amendments Act. These regulatory revisions are based on specific provisions in the ADA Amendments Act or on specific language in the legislative history. The revised language clarifies that the term ‘‘disability’’ shall be interpreted broadly and explains that the primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations not to discriminate based on disability and that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis. The revised regulations expand the definition of ‘‘major life activities’’ by providing a non-exhaustive list of major life activities that specifically includes the operation of major bodily functions. The revisions also add rules of construction to be applied when determining whether an impairment substantially limits a major life activity. These rules of construction state the following:
—That the term ‘‘substantially limits’’ shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA;
—that an 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;
—that the primary issue 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;
—that in making the individualized assessment required by the ADA, the term ‘‘substantially limits’’ shall be interpreted and applied to require a degree of functional limitation that is lower than the standard for ‘‘substantially limits’’ applied prior to the ADA Amendments Act;
—that 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;
—that the ameliorative effects of mitigating measures other than ‘‘ordinary eyeglasses or contact lenses’’ shall not be considered in assessing whether an individual has a ‘‘disability’’;
—that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; and
—that 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 final rule also states that an individual meets the requirement of ‘‘being regarded as having such an impairment’’ if the individual establishes that he or she has been subjected to a prohibited action because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity. It also provides that individuals covered only under the ‘‘regarded as’’ prong are not entitled to reasonable modifications.

The ADA Amendments Act’s revisions to the ADA apply to title I (employment), title II (State and local governments), and title III (public accommodations) of the ADA. Accordingly, consistent with Executive Order 13563’s instruction to agencies to coordinate rules across agencies and harmonize regulatory requirements, the Department has adopted, where appropriate, regulatory language that is identical to the revisions to the Equal Employment Opportunity Commission’s (EEOC) title I regulations implementing the ADA Amendments Act. See 76 FR 16978 (Mar. 25, 2011). This will promote consistency in the application of the ADA and avoid confusion among entities subject to both titles I and II, as well as those subject to both titles I and III.

Changes Made From the Proposed Rule
The final rule retains nearly all of the proposed regulatory text, although some sections were reorganized and renumbered. The section-by-section analysis in appendix C to part 35 and appendix E to part 36 responds to comments and provides additional interpretive guidance on particular provisions. The revisions to the regulatory text, which include substantive changes in response to comments, include the following:

• Added Attention-Deficit/Hyperactivity Disorder (ADHD) as an example of a physical or mental impairment in §§ 35.108(b)(2) and 36.105(b)(2).

• Added ‘‘writing’’ as an example of a major life activity in §§ 35.108(c) and 36.105(c).

• Revised the discussion of the ‘‘regarded as prong’’ in §§ 35.108(f) and 36.105(f) to clarify that the burden is on a covered entity to establish that, objectively, an impairment is ‘‘transitory and minor’’ and therefore not covered by the ADA.

• Modified the rules of construction to make them more consistent with the statute and to provide more clarity, including §§ 35.108(a)(2) and 36.105(a)(2), 35.108(c)(2) and 36.105(c)(2), and 35.108(d)(1) and 36.105(d)(1).

• Revised or added several provisions to more closely conform to the EEOC regulation.