ADAAA Regulations

The Equal Employment Opportunity Commission on Friday, March 25, 2011 issued final regulations implementing the ADA Amendments Act of 2008 (ADAAA), which are now available on the Federal Register website. For direct access to the regulations, click here. “Like the law they implement, the regulations are designed to simplify the determination of who has a ‘disability’ and make it easier for people to establish that they are protected by the Americans with Disabilities Act (ADA),” the EEOC’s website states.

Congress passed the ADAAA in response to court decisions that Congress found had inappropriately narrowed the scope of the original ADA by ruling that certain individuals with various impairments or who used mitigating measures to ameliorate their impairments did not qualify as “disabled” within the meaning of the ADA. The ADAAA explicitly rejected certain Supreme Court interpretations of the term “disability” and a portion of the previous EEOC regulations. Because of the ADAAA and the new regulations, it will be much easier for individuals seeking the protection of the ADA to show that they meet the definition of disability. Practically, this means that many more ADA discrimination charges and lawsuits will focus on the merits of the claims rather than threshold coverage disputes. The ADA (and the ADAAA) apply to all private and state and local government employers with 15 or more employees.

Here is a summary of the most important aspects of the new regulations:

Three-Pronged Definition of Disability

As did the ADA, the ADAAA and the new regulations define disability using a three-pronged approach, but the terms of the definition have been revised:

• “Actual Disability” – a physical or mental impairment that substantially limits one or more major life activities;
• “Record of Disability” – a record of a physical or mental impairment that substantially limited a major life activity; or
• “Regarded as Disabled” – when an employer takes action prohibited by the ADA because of an actual or perceived impairment unless that impairment is both transitory and minor. The regulations make it easier for individuals to establish coverage under the “regarded as” part of the definition of “disability.” In some court decisions, establishing such coverage posed significant hurdles, but under the amended law and the new regulations, the test is far less stringent and the focus is on how the person was treated rather than on what an employer believes about the nature of the person’s impairment. Thus, an employer “regards” an individual as having a disability if it takes an adverse action (e.g., refusal to hire, termination, or demotion), based on an individual’s impairment or on an impairment the employer believes the individual has, unless the impairment is both transitory (lasting or expected to last for six months or less) and minor. Note that for “regarded as” claims, the impairment need not in fact meet the test for a disability – that it substantially limits a major life activity.

Individuals who are “regarded as” having a disability are not eligible to receive a reasonable accommodation in order to perform the essential functions of a job. Individuals qualifying as disabled under the first two prongs of the definition must be able to show that the current or past disability actually requires a reasonable accommodation.

Principles to Guide Determination of Disability Status

Based on the ADAAA’s requirements, the regulations set forth a list of principles to guide determination of whether a person has a disability. For example, the principles provide that an impairment need not prevent or severely or significantly restrict performance of a major life activity to be considered a disability. It must merely be a “substantial” limitation. Additionally, whether an impairment is a disability is to be construed broadly, to the maximum extent allowable under the law.

Major Life Activities

The regulations provide that the term “major life activities” includes “major bodily functions,” such as the immune system, normal cell growth, and brain, neurological, digestive bowel, bladder, respiratory, circulatory, endocrine and reproductive functions. More controversially, the regulations also identify sleeping, concentrating, thinking, communicating, sitting, reaching and interacting with others.

Impairments

The regulations identify certain conditions as constituting disabilities “in virtually all cases.” These include autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, major depressive disorder, bipolar disorder, post-traumatic stress disorder and obsessive compulsive disorder. On the other hand, the regulations recognize that, as under the original ADA, not every impairment will constitute a disability. The definition of the term “impairment” does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within “normal” range and are not the result of a physiological disorder. The definition, likewise, does not include characteristic predisposition to illness or disease. Other conditions, such as pregnancy, that are not the result of a physiological disorder are also not impairments.

Episodic Impairments

Impairments that are episodic (such as epilepsy or asthma) or in remission (such as cancer) are disabilities under the regulations if the impairments would be substantially limiting when their symptoms are active.

Substantially Limits

The regulations adopt “rules of construction” for use in determining if a person is substantially limited in performing a major life activity:

• An impairment need not prevent or severely or significantly limit a major life activity to be considered “substantially limiting.” Nevertheless, not every impairment will constitute a disability.
• The regulations require broad construction of the term “substantially limits” in favor of expansive coverage to the maximum extent permitted by the terms of the ADA.
• Individualized assessments are required, although, as noted, the regulations identify certain conditions as qualifying as disabilities “in virtually all cases.”
• The regulations describe proof of substantial impairment by means of scientific or medical evidence or statistical analysis as usually not required, but such evidence may be used.
• An individual need only be substantially limited, or have a record of substantial limitation, in one major life activity in order to be covered under the first or second prongs of the definition of “disability.”

Major Life Activity of Working

EEOC expects that the regulations’ broadened definition of disability will result in fewer disputes about the applicability of the major life activity of “working” than had been the case in litigation under the original ADA. The focus in determining whether an individual is substantially limited in the major life activity of working will be on the person’s difficulty in performing either a class or a broad range of jobs in various classes. A class of work may be determined by reference to the nature of the work (for example, commercial truck driving or assembly line jobs), or by reference to job-related requirements that an individual is limited in meeting (for example, jobs requiring extensive walking, prolonged standing, and repetitive or heavy lifting). The regulations also make clear that simply demonstrating a substantial limitation in performing unique aspects of a single specific job will not be enough to establish that a person is substantially limited in the major life activity of working.

Mitigating Measures

With the exception of ordinary eyeglasses or contact lenses, “mitigating measures,” such as medication and assistive devices like hearing aids, are not to be considered when determining whether someone has a disability. In other words, individuals are to be assessed on the basis of their impairment without the benefit of the mitigating measure. In addition, negative or side effects from using a mitigating measure may now be taken into account in determining whether an individual meets the definition of disability. One example would be the effect of medication taken for hypertension. In addition, such negative or side effects can be considered in determining whether a disabled individual must be provided a reasonable accommodation or whether the individual’s disability presents a direct threat to himself or to others.

Length of Impairment

An impairment need not last a particular length of time in order to be substantially limiting. For example, if an individual has a back impairment that results in a 20-pound lifting restriction that lasts for a few months, he is substantially limited in the major life activity of lifting, and therefore covered under the first prong of the definition of disability. The duration of an impairment is one factor that is relevant in determining whether the impairment substantially limits a major life activity. Impairments that last only for a short period of time have previously been deemed not to qualify as a covered disability. The new regulations, however, allow a short-term impairment to be covered if sufficiently it is limiting. The exception for transitory and minor impairments described above applies only to “regarded as” claims. For example, a hand wound would normally be considered “transitory and minor,” and thus not a disability. However, if the employer mistakenly believes it to be symptomatic of HIV infection, the employer will nevertheless have “regarded” the employee as an individual with a disability, since the covered entity took a prohibited employment action based on a perceived impairment (HIV infection) that is not “transitory and minor.”

Summary

In summary, the ADAAA and its regulations aim to shift the focus of litigation under the ADA from disputes about whether or not a person is disabled to disputes about whether or not an employer discriminated against and/or failed to provide a disabled applicant or employee with a reasonable accommodation in order to perform the essential functions of a position.

For More Information

For more information about these new regulations and what you, as an employer, should do to proactively respond to the changed employment landscape in the area of disability discrimination, contact Joseph P. Hofmann at 717.399.6643 or the Stevens & Lee attorney with whom you normally consult regarding labor and employment issues.

This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.