On March 24, 2011, the EEOC released the much-anticipated final regulations pertaining to the ADA Amendments Act (ADAAA), which was signed into law by President Bush in September 2008. These new regulations change much of the existing legal framework relating to disability law, and employers are well-served to have a heads up on how these changes will affect their current practices. The highlights of these new regulations, hot off the presses, are examined below — but be on the lookout for a more detailed review of the changes in upcoming editions of Legal News: Employment Law Update.
“Regarded As” Having a Disability Prong Redefined
One of the major changes to the regulations affects those covered under the “regarded as” prong of the definition of disability. Specifically, the regulations make clear that the concepts of “major life activities” and “substantially limits” are not relevant in evaluating a claim under the “regarded as” prong. Practically speaking, an employee suing under this prong need only show that that his/her employer regarded him/her as having a disability, and that the employer discriminated against the employee because of that perception. The employer need not have considered whether a major life activity was substantially limited based on that perception.
Rules of Construction Limit Individualized Assessment of Impairments
The final rules for the ADAAA now include nine rules of construction that are derived from the statute or the legislative history of the statute. Some of the major rules of construction include those for interpreting whether a disability “substantially limits” an individual in a major life activity, whether an individual has a “record of impairment,” or whether the operation of a major bodily function impairs an individual’s “major life activities.” 29 C.F.R. § 1630.2(i), (j), (k). According to the EEOC, once these rules of construction are applied, there are certain impairments that will always be considered a disability, including diabetes, epilepsy, HIV infection, cancer, and post-traumatic stress disorder, to name a few. This reading expands significantly the kinds of impairments that are covered by the ADA. The purpose behind these changes according to the EEOC is to do just that: Congress, in passing the ADAAA, intended that there should not be a mini-trial as to whether certain impairments are covered by the ADA, but rather that the focus should be on the merits of whether discrimination occurred or not. 29 C.F.R. § 1630.1(c)(4). Although not going so far as to create a per se list of covered impairments, the new regulations significantly limit individualized assessments of an employee’s impairment and potentially increase employers’ exposure to liability.
Major Life Activities
Further, the new regulations provide an expanded and non-exhaustive list of what constitutes a “major life activity” under the ADA. It also specifically rejects the holding of Toyota Motor Mtg., Ky., Inc., v. Williams that a major life activity is determined by reference to its “central importance to most people’s daily lives.” Accordingly, the term “major” is not to be interpreted strictly, such that it unintentionally creates a demanding standard for finding a disability to exist. To illustrate, lifting is considered a major life activity by the new regulations, regardless of whether lifting is a central part of daily life to the individual claiming to be limited in lifting, or, indeed, to most people’s daily lives. If an employee cannot lift 15 pounds, but an ordinary person can, that employee may be substantially limited in the major life activity of lifting. However, if heavy lifting is an essential component of the job, and the employee cannot lift 50 pounds, that employee is substantially limited in working because he or she is limited in a class of jobs that requires heavy lifting and is, therefore, eligible for a reasonable accommodation. What this means is that the employee can ask for a reasonable accommodation if he or she cannot lift the 50 pounds, but it does not necessarily mean the employee is a “qualified” individual with a disability under the ADA, which brings a welcome sigh of relief from employers.