It took about two years, but the Equal Employment Opportunity Commission has released a final version of regulations that reflect significant changes to the Americans with Disabilities Act.

The regs provide the employment bar with guidance in interpreting the ADA Amendments Act, which expanded the definition of “disability” and opened the door for many discrimination claims that would not have survived summary judgment under the courts’ narrow view of the law.

“We have had such a hard time with discrimination claims on the plaintiffs’ side so this is a very welcome and needed change,” said Providence, R.I., employment lawyer Louise A. Herman. “It’s a great time to be an attorney representing individuals with disabilities.”

William E. Hannum III, who practices at Schwartz Hannum in Andover, Mass., said “employers should now treat everything as a disability and focus on accommodations [for disabled employees] and the interactive process.”

The ADA Amendments Act, known as the ADAAA, took effect Jan. 1, 2009;

the EEOC issued proposed regulations tied to the new statute in September of

that year. But until now, the employment bar has been without a final set of regulations to guide it through the ADAAA.

“The regulations are important because they help finalize the rules about what a disability means,” said Adam P. Forman of Boston, a Littler Mendelson attorney who represents employers. “We now have the final regs and know the rules of the game.”

Redefining disability

Before the ADAAA and the final regulations, the employer’s argument in a typical disability discrimination case centered on whether the employee’s condition qualified as a disability under the law.

Because the courts took a narrow view of what qualified as a legally protected disability, most complaints could not survive a motion for summary judgment.

“There were many cases that I wouldn’t even take that, right now, I feel like I can take and also be successful,” Herman said. “And it has certainly made me feel a lot more comfortable giving advice to clients. At the end of the day, there will be more protections for them.”

Among the most important aspects of the EEOC’s final regulations is the creation of a category of impairments that will “virtually always” qualify as a disability. Examples of such disabilities include: HIV, deafness, blindness, bipolar disorder, cancer and post-traumatic stress disorder.

“If you fall into one of those categories, you’re less worried about getting over the preliminary hurdle,” said employment lawyer David E. Belfort of Bennett & Belfort in Cambridge, Mass. “Judges are going to see a condition that falls on this list and they’re going to say, ‘Let’s move on to the rest of the analysis.’”

In other words, the burden of proof has shifted from employees to employers, said Jean A. Musiker of Boston’s Sugarman, Rogers, Barshak & Cohen.

The argument is no longer whether an employee’s condition qualifies as a disability, but whether the employer worked with the employee to provide reasonable accommodations in the workplace.

“Employers need to document all the steps that they take, all the interactions they had with an employee around the issue, to make sure that there is a clear record of what they’ve done,” Musiker said. “An employer’s obligation is to not discriminate on the basis of disability and to engage in a dialogue to figure out if there’s a way for the employee to continue to perform the basics of the job.”

Multiple attempts at accommodations may protect employers, Hannum added.

For example, if an employee gets injured, an employer might first offer a leave of absence, and then bring the employee back to work part time on a light duty schedule followed by a full-time schedule while still on light duty.

The employer might also consider changing the employee’s job description, Hannum said.

“When litigating disability discrimination cases,” he said, “I like to be able to say that the employer did more than one thing to accommodate the employee.”

New restrictions

Employers used to be allowed to consider “mitigating measures,” such as hearing aids or medication, when they were determining whether an employee was disabled.

Not anymore.

The final regulations ban such considerations, with the exception of eyeglasses and contact lenses, and require that employers consider employees in their “natural state” when assessing the extent of a disability, Belfort said.

Despite the broader application of the ADA, the regulations maintain the act’s definition of the term “disability” as “a physical or mental impairment that substantially limits one or more major life activities.”

But the regulations say that a disability does not need to “prevent or severely restrict a major life activity to be defined as substantially limiting,” which lowers the standard previously applied by the courts, Belfort said.

While the regulations emphasize that employers are required to asses each employee or applicant individually, the overriding message is clear, according to Hannum.

For disabilities listed in the regulations, “employers are going to have a steep hill to climb if they want to argue that someone with one of the conditions on the list is not disabled,” he said.

‘Tougher battle’

Disability discrimination claims have spiked since the ADAAA was enacted.

In fiscal year 2008, the year before the amendment became law, the EEOC logged 19,453 complaints under the ADA. The next year saw 21,451 complaints. And in FY 2010 there were 25,165 filings, or a 29 percent increase over 2008.

“The fear is that now anybody will be able to say I have a disability because of any minor impairment and will look for some sort of workplace adjustment that will cause practical problems for employers,” Forman said. “But I don’t think that has actually happened so far.”

Forman appears to be right. Of all the ADA complaints filed last fiscal year, the EEOC was unable to find reasonable cause for disability discrimination in more than 60 percent of the cases, which is on par with previous years.

Employers might be getting hit with more disability discrimination claims, but Forman said he is finding that the situation is “manageable.” He has advised his employer clients to update their policies and the job descriptions for their employees. They also need to educate their managers about the new law, he said.

“You really have to show that either the employee was not qualified or that the employer engaged in good faith accommodation,” he said. “It’s a tougher battle than it was before.”

Reporter Phillip Bantz contributed to this story.