But the Court also reversed the Commission’s conclusion on plaintiff’s average weekly wage (AWW).  The AWW question was difficult because of the nature of the plaintiff’s work: temporary work for different employers, short periods where he was highly paid, with many periods of no pay.  The Commission found that using the standard AWW calculation methods (average pay over different periods) would not be fair, so used Method 5 for exceptional cases.  Specifically, it averaged the plaintiff’s pay from all employers for the year before he was hurt.  Although sympathetic to this approach, the Court was compelled to reject it because the Supreme Court has repeatedly held that an AWW calculation cannot encompass pay from other employers besides the employer where the injury occurred.  The Court didn’t have an alternate method to recommend to calculate a fair AWW; it just remanded.  But it also asked the Supreme Court to take the case on discretionary review to provide the right answer in cases like this one.

The Equal Employment Opportunity Commission (EEOC) is the federal agency tasked with issuing regulations that provide more specific rules concering the act.  According to a Notice by the EEOC about the ADAAA, the Act retains the ADA’s basic definition of “disability” as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, it changes the way that these statutory terms should be interpreted in several ways. Most significantly, the Act:

• directs EEOC to revise that portion of its regulations defining the term “substantially limits”;
• expands the definition of “major life activities” by including two non-exhaustive lists;
• states that mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a disability;
• clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
• changes the definition of “regarded as” so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead says that an applicant or employee is “regarded as” disabled if he or she is subject to an action prohibited by the ADA (e.g., failure to hire or termination) based on an impairment that is not transitory and minor; and
• provides that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation.

On September 16, the EEOC approved its proposed regulations to implement the ADAAA.  The EEOC has a questions and answers page that goes into some detail about the ADAAA changes to the law.    There is a 60-day period in which the public may submit comments to EEOC about the proposed regulation. At the end of this period, EEOC will evaluate all of the comments and make revisions in response to those comments.