The ADA Amendments Act of 2008 (ADAAA) required the Equal Employment Opportunity Commission (EEOC) to amend its ADA regulations. The final regulations were just published on March 25, 2011, and are effective May 24, 2011. There is no doubt that the Act and final regulations offer protection to a much broader group of individuals which employers may not have previously considered to be disabled. Employers need to be more alert than ever about whether an employee's work restrictions, off-hand or other indirect comments trigger the ADAAA and should also become familiar with which conditions are now considered disabilities for which an accommodation may need to be provided.
Traditionally, employers have defended ADA disability lawsuits by arguing that the employees with work restrictions were not covered by the Act because they did not have disabilities. The ADAAA and the final regulations have expanded the definition of disability. An employee is disabled if they can establish one of three criteria: he or she (1) has a physical or mental impairment that substantially limits one or more of the major life activities of such an individual; (2) has a record of such impairment; or (3) is regarded as having such impairment.
The meaning of the language “substantially limits” and “major life activities” has changed. Courts previously defined these terms to mean a significant restriction on an activity that is of central importance to most people’s daily lives. For example, moderate restrictions were not considered disabilities under prior law, where now the same conditions or restrictions may in fact rise to the level of a protected disability.
The final regulations implement the expansion of the concept of both "substantially limits" and "major life activities." Major life activities now include the operation of major bodily functions involving the immune system, special sense organs, and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal and reproductive functions. Most importantly, the regulations clarify that the term "major life activity" does not have to be a demanding standard or interpreted strictly nor does it matter if the activity is of central importance to daily life.
The final regulations do not provide a precise definition of “substantially limits,” rather, establish guidelines for reviewing impairments to determine if the impairments create a substantial limitation. Thus, an impairment does not need to prevent, or significantly or severely restrict, an individual from performing a major life activity in order to be substantially limiting. The degree of functional limitation is to be a much lower standard than under prior law. In order to determine whether an impairment substantially limits a major life activity, employers are instructed to consider the conditions under which the individual performs the major life activity, the manner in which the individual performs the major life activity, and the duration of time it takes to perform the major life activity. The facts that may be considered in this regard are the effort or time required to perform a major life activity, pain experienced when performing the major life activity, the length of time that the major life activity can be performed, and the way an impairment affects a major bodily function.
According to the regulations, several conditions will almost always be considered a substantial limitation on a major life activity: deafness substantially limits hearing; blindness substantially limits seeing; an intellectual disability (formerly termed mental retardation) substantially limits brain function; partially or completely missing limbs or mobility impairments requiring the use of a wheel chair substantially limit musculoskeletal function; autism substantially limits brain function; cancer substantially limits normal cell growth; cerebral palsy substantially limits brain function; diabetes substantially limits endocrine function; epilepsy substantially limits neurological function; Human Immunodeficiency Virus (HIV) infection substantially limits immune function; multiple sclerosis substantially limits neurological function; muscular dystrophy substantially limits neurological function; and major depressive order, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder and schizophrenia substantially limit brain function.
With respect to the use of mitigating measures, and with the exception of ordinary glasses or contacts, it is also irrelevant that the effects of an impairment are completely resolved by medication or other aides. Thus, a person can have an impairment that is completely controlled through medication and not actually have any limitations on life activities as a result. Still, the person is to be deemed disabled under these regulations. Moreover, an impairment can be of short duration, intermittent, or episodic and still qualify as a disability.
With respect to claims that involve allegations that an employee is or was "regarded as" disabled, the regulations clarify that the concept of “substantially limits” and “major life activity” are not part of the analysis. By way of an example set forth in the regulations, if an employer terminates an employee because he has cancer, the employer has regarded the employee as an individual with a disability. Employers can, however, avail themselves of a defense to a “regarded as” claims by arguing that the impairment, real or perceived, is objectively both transitory (lasting less than six months) and minor. The regulations take pains to point out that the transitory and minor defense only applies to regarded as claims. Thus, the EEOC’s position is that, under the first prong of the disability definition, a 20-pound lifting restriction that lasts for less than six months and stems from a back impairment can still be considered a disability.
Although the regulations state that not every impairment qualifies as a disability, the boundaries of the new definitions will clearly be tested through increased litigation. Employers should also be mindful that with an expansion of the definition of disability, they should be even more vigilant about what processes are in place to tightly control the flow of information about employees' medical information as employees test whether or not their particular circumstances qualify them for an accommodation. The best practice for managing disability issues is one area that is perhaps unchanged -- engage employees whenever appropriate to determine what can be done to assist them. If an employee has a work restriction (whether it is written, oral, or observed), it may be appropriate, given the circumstances, to meet with the employee to discuss whether an accommodation can or should be made. If an employee or applicant demonstrates a physical or mental impairment that would limit his or her ability to request an accommodation, initiate an informal interactive process to accommodate the employee. As always, keep detailed records of requests made, and accommodations granted or denied, along with some evidentiary back-up for the rationale behind the decisions.
Finally, employers should review their policies and practices governing leave and the interactive process set forth in the ADA and focus on their reasonable accommodation procedures, as well as review and update the essential functions and qualifications of jobs in the workplace.
The final regulations and the EEOC’s guidance materials on the ADAAA are available at http://www.eeoc.gov/laws/statutes/adaaa_info.cfm.