The Americans with Disabilities Act Amendments Act of 2008 (the "ADAAA"), which went into effect on Jan. 1, 2009, imposed across-the-board changes to the Americans with Disabilities Act (the "Act"). The ADAAA makes it easier for individuals to establish they are "disabled," thereby garnering the protections of the Act. On Sept. 23, 2009, the Equal Employment Opportunity Commission (the "EEOC") published proposed regulations implementing the Act. Consistent with Congress' expressed intent in passing the ADAAA, the proposed regulations broadened the Act's coverage significantly by expanding the definitions of several key terms and concepts used to determine whether an individual is disabled within the meaning of the Act. After receiving hundreds of comments from interested employer and employee-rights groups, the EEOC published final regulations implementing the ADAAA on March 25, 2011. The final regulations largely adopt the proposed rules, but they also contain some significant modifications. Neal, Gerber & Eisenberg previously issued guidance with respect to the proposed rules. This Alert updates that guidance to reflect the changes made by the EEOC's final regulations.
The definition of "disability" is to be construed broadly. The final regulations keep the ADA's definition of the term "disability" as a physical or mental impairment that substantially limits one or more major life activities; a record (or past history) of such an impairment; or being regarded as having a disability. The final regulations implement the significant changes that Congress made regarding how those terms should be interpreted.
Major Life Activities are defined as activities that "most people in the general population can perform with little or no difficulty." The final regulations adopt wholesale the two non-exhaustive lists of specific major life activities contained in the proposed regulations, including reaching, sitting and interacting with others, which are not specifically listed in the Act. The other listed major life activities are caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, working, as well as the operation of "major bodily functions." The term "major bodily function" is further broken down into enumerated sub-categories including, immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions, as well as function of the hemic, lymphatic and musculoskeletal systems, special sense organs and skin, genitourinary, and cardiovascular functions.
The EEOC has further explained that, in contrast to previous court rulings, whether an activity is a "major life activity" is not determined by reference to whether it is of "central importance to [one's] daily life."
Substantial Limitations need not be substantial at all. The final regulations adopt certain "rules of construction" when determining if an individual is "substantially limited" in performing a major life activity. These rules of construction include the following:
- The term "substantially limits" requires a lower degree of functional limitation than the standard previously applied by the courts. An impairment is a disability within the meaning of the final regulations if it "substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population." However, an impairment does not need to prevent or severely, or even significantly restrict a major life activity.
- The final regulations mandate that the term "substantially limits" is to be construed broadly in favor of expansive coverage, to the maximum extent permitted by the ADA.
- The determination of whether an impairment substantially limits a major life activity requires an individualized assessment, as was true prior to the ADAAA.
- With one exception ("ordinary eyeglasses or contact lenses"), the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures, such as medication or hearing aids.
- An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
- The final regulations state that because the primary focus of the ADA is whether discrimination occurred, the determination of disability should not require extensive analysis.
The final regulations also make it easier for individuals to establish coverage under the "regarded as" part of the definition of "disability." In fact, the EEOC states that this is the prong that may be the most easily established by individual claimants. Under the ADAAA, the focus for establishing coverage is on how a person has been treated because of a physical or mental impairment (that is not transitory and minor), rather than on what an employer may have believed about the nature of the person's impairment. All an individual will need to demonstrate to be "regarded as" disabled is that he or she was subjected to a prohibited action because of an actual or perceived physical or mental impairment, whether or not that impairment substantially limits, or is perceived to substantially limit, a major life activity.
The regulations clarify, however, that individuals "regarded as" disabled are not entitled to a reasonable accommodation.
The final regulations differ from the proposed regulations in a number of ways. The final regulations modify or remove language that groups representing employer or disability interests had found confusing or had interpreted in a manner not intended by the EEOC. For example:
- Instead of providing a list of impairments that would "consistently," "sometimes," or "usually not" be disabilities (as had been done in the proposed rules), the final regulations provide the rules of construction to guide the analysis and explain that by applying those principles, there will be some impairments that virtually always constitute a disability. The regulations also provide examples of impairments that should easily be concluded to be disabilities, including epilepsy, diabetes, cancer, HIV infection, and bipolar disorder.
- Language in the proposed regulations describing how to demonstrate that an individual is substantially limited in "working" has been deleted from the final regulations and moved to the appendix (consistent with how other major life activities are addressed). The final regulations also retain the existing familiar language of "class or broad range of jobs" rather than introducing a new term, and they provide examples of individuals who could be considered substantially limited in working.
- The final regulations retain the concepts of "condition, manner, or duration" that the proposed regulations had proposed to delete and explain that while consideration of these factors may be unnecessary to determine whether an impairment substantially limits a major life activity, they may be relevant in certain cases.
As required by the ADAAA, the final regulations broaden the definition of "disability" and lower the standards to qualify as a disabled person under the Act. Employers can expect to see a sharp increase in employees' requests for workplace accommodations, as well as increases in disability discrimination claims, particularly "regarded as" claims. To minimize their liability for future disability discrimination claims, employers should act now by providing managers and human resources personnel with training to fully understand the EEOC's final regulations in order to recognize situations in which an employee's rights under the Act may be implicated and to ensure proper responses.