The U.S. Department of Justice (DOJ) has issued final regulations that expand who is covered under the Americans with Disabilities Act (ADA). The new regulations go into effect on October 11, 2016.

In issuing the final regulations this month, the DOJ specifically sought to formalize its policy of interpreting the ADA consistent with prior regulations published by the U.S. Equal Employment Opportunity Commission (EEOC), the entity that enforces the employment-specific portions of the ADA (Title I). The DOJ enforces Title II (local and state governments) and Title III (places of public accommodation) of the statute. Under its new regulations, it will continue to apply the mandates of the ADA as broadly as possible.

Congress passed the ADA Amendments Act of 2008 in response to U.S. Supreme Court decisions that had limited the definition of "disability" under the ADA and instructed federal courts and administrative agencies like the EEOC and DOJ to apply the terms of the statute to the maximum extent permitted by the law. The EEOC responded by issuing regulations in 2011 that included substantive changes to several key terms, including "substantially limits" and "major life activities," as well as other important changes.

Most entities subject to Title II and Title III of the ADA—including state and local governments, hotels, restaurants, hospitals, private testing or certification organizations, and colleges and universities—long anticipated that the DOJ would release similar regulations. In 2014, it issued a Notice of Proposed Rulemaking that largely tracked the EEOC's earlier regulations. The new, final rules continue to do so, most notably in the following ways:

• Revise the definition "substantially limits" to match the expansive reach of the term as envisioned by Congress and dictate that it will be "construed broadly in favor of expansive coverage."
• Emphasize that to have a disability under the ADA means to be substantially limited in one or more major life activity as compared to most people in the general population. However, they caution that reference to the general population does not require scientific, medical, or statistical analysis.
• State that temporary or transitory conditions may be considered substantially limiting in certain situations. Rather than being a bar, as was previously the case, the short-term nature of a particular condition will be merely one factor among others to be considered in assessing whether or not a particular condition substantially limits a major life activity.   
• The rules explicitly include "major bodily functions" within the term major life activity. They also provide a non-exhaustive list of traditional major life activities and major bodily functions that qualify as major life activities under, including caring for oneself, walking, performing manual tasks, seeing, hearing, speaking, breathing, learning, and working, as well as eating, sleeping, standing, sitting, bending, reaching, lifting, reading, concentrating, thinking, communicating, and interacting with others.
• They name a set of conditions that "virtually always" will be considered substantially limiting, i.e. deafness, blindness, an intellectual disability, partially or completely missing limbs or mobility impairments requiring the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, human immunodeficiency virus (HIV) infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.
• They prohibit consideration of the ameliorative impact of mitigating measures in determining whether or not a condition is substantially limiting in nearly all circumstances. However, they also instruct that the non-ameliorative effects of any mitigating measures should be considered in assessing the condition, manner, and duration of an impairment to determine if the condition is substantially limiting. This means that the negative side effects of medication, for example, would need to be considered in assessing whether a condition is a disability.

Of particular note for private testing entities and educational institutions, in comments released along with the new regulations the DOJ discussed why it did not include "test taking" as a major life activity—because testing necessarily includes activities like thinking, reading, and writing, the agency determined that inclusion of test taking itself was unnecessary. Nevertheless, a substantial impairment in test taking as compared to most people will likely render a condition a disability. Also of note, unlike the EEOC, the DOJ makes specific reference to dyslexia and attention deficit hyperactivity disorder among its examples of physical or mental impairments that may be considered disabilities. Again, colleges and universities and private testing entities should take particular note of this development as they consider requests for accommodations from individuals diagnosed with these conditions related to their academic programs and testing protocols.

The new regulations go into effect on October 11, 2016. Before then, all entities subject to Title II and Title III of the ADA should review the rules and ensure that they are applying the ADA consistent with the DOJ’s expansive interpretation of the statute.