Questions and Answers about the Department of Justice’s Final Rule Implementing the ADA Amendments Act of 2008

What is the ADA Amendments Act of 2008 and when did it take effect?

The ADA Amendments Act of 2008 (ADA Amendments Act) amended the Americans with Disabilities Act (ADA). The ADA Amendments Act was signed into law on September 25, 2008, and took effect on January 1, 2009.

What is the purpose of the ADA Amendments Act?
Congress passed the ADA Amendments Act to remedy the effects of several Supreme Court decisions that narrowly interpreted the ADA's definition of "disability." Those narrow interpretations resulted in the denial of the ADA's protection for many individuals with impairments that Congress intended to cover under the law, such as cancer, diabetes, and epilepsy. The ADA Amendments Act provides clear direction about what "disability" means under the ADA and how it should be interpreted so that covered individuals seeking the protection of the ADA can establish that they have a disability.
Why did the Department need to change its regulations?

Although the ADA Amendments Act is already in effect and already applies to entities covered under title II (State and local governments) and title III (public accommodations and commercial facilities) of the ADA, the Department's changes to its title II and III regulations help ensure that covered entities, persons with disabilities, and others know how to interpret and apply the ADA Amendments Act. These changes also satisfy the Attorney General's responsibility to publish regulations that are consistent with any changes to the ADA made by Congress.

Has the Department changed the basic, three-prong definition of "disability" in the regulations?

No. The Department's regulations reflect the substance of the ADA Amendments Act, which made clear that the ADA's definition of "disability" remains the same. However, Congress indicated that the definition of "disability" should be interpreted so as to reinstate a broad scope of protection under the ADA. Therefore, the Department's regulation retains the three-prong definition of "disability" as: (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record (or past history) of such an impairment; or (3) being regarded as having a disability. The ADA Amendments Act regulations specify how that definition should be interpreted and applied.

What are the changes in the revised regulations?

The revisions to the Department's title II and title III regulations are based on the broad purposes and specific requirements of the ADA Amendments Act. Consistent with the ADA Amendments Act, the regulations establish the following:

The definition of "disability" should be interpreted broadly. The question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.
Major life activities now include the operation of major bodily functions, such as functions of the neurological, digestive, or respiratory systems. Also, the ADA Amendments Act provides a more extensive, non-exhaustive list of examples of major life activities, which includes major bodily functions.
Due to uncertainty about the meaning of "physical and mental impairments," the term is now illustrated with examples, including dyslexia and Attention-Deficit/Hyperactivity Disorder (ADHD).
Specific rules of construction apply when determining whether an individual has a disability. These rules of construction include the following:

The primary issue in a case brought under the ADA should be whether the covered entity 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 term "substantially limits" shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA;
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;
The comparison of the extent to which an impairment substantially limits the ability of an individual to perform a major life activity should be to most people in the general population;
Comparing 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, such as medication or hearing aids (but excepting ordinary eyeglasses and contact lenses), shall 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; and
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.

It should be easier for individuals to establish coverage under the "regarded as" prong of the definition of "disability." The emphasis should be on how a person has been treated because of an actual or perceived physical or mental impairment (that is not transitory and minor), rather than on what a covered entity may have believed about the nature or severity of the person's impairment.
Individuals covered only under the "regarded as" prong are not entitled to reasonable modifications.

Under the ADA Amendments Act regulations, if an individual can show that he or she falls within the ADA definition of "disability," does it automatically mean that he or she is a victim of unlawful discrimination?

No. As was the case before the passage of the ADA Amendments Act, the individual still has to show that he or she has been subjected to an action prohibited under the ADA because of the disability.

How do the Department's regulations implementing the ADA Amendments Act relate to the Equal Employment Opportunity Commission's 2011 regulation implementing the ADA Amendments Act?

The ADA Amendments Act's changes to the meaning and interpretation of the definition of "disability" apply to title I (employment), as well as to titles II and III of the ADA. The Equal Employment Opportunity Commission (EEOC), which is responsible for developing regulations implementing title I of the ADA, published its revised title I regulation incorporating the ADA Amendments Act requirements in March 2011. The Department's regulations pertain to titles II (State and local governments) and III (public accommodations and commercial facilities) of the ADA. The Department's regulations are consistent with the corresponding provisions in the title I regulation.

Has the Department published any guidance to explain this regulation?

Yes. The Final Rule includes extensive guidance on the application of the ADA Amendments Act to titles II and III of the ADA. The guidance, which includes a section-by-section analysis, is found in Appendix C to the title II regulation and is incorporated by reference into Appendix E to the title III regulation.

How can I obtain a copy of the Final Rule?

A copy of the Final Rule is available at www.federalregister.gov and on the Department's website at archive.ada.gov.

Where can I find the Department's Final Regulatory Assessment regarding this Final Rule?

A copy of the Final Regulatory Assessment is available on the Department's website at: archive.ada.gov.

For more information about the ADA, please visit our website or call our toll-free number.

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The Americans with Disabilities Act authorizes the Department of Justice (the Department) to provide technical assistance to individuals and entities that have rights or responsibilities under the Act. This document provides informal guidance to assist you in understanding the ADA and the Department's regulations.

This guidance document is not intended to be a final agency action, has no legally binding effect, and may be rescinded or modified in the Department's complete discretion, in accordance with applicable laws. The Department's guidance documents, including this guidance, do not establish legally enforceable responsibilities beyond what is required by the terms of the applicable statutes, regulations, or binding judicial precedent.

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Last updated: February 24, 2020