On May 24, 2011, the Equal Employment Opportunity Commission’s final regulations and interpretative guidance for the ADA Amendments Act of 2008 (“ADAAA”) became effective.

As originally enacted, the Americans with Disabilities Act of 1990 (“ADA”) barred employers from discriminating against qualified individuals with a disability, provided that the individual could perform the essential functions of the job, with or without reasonable accommodation. However, as a result of interpretation by the courts, many employees were excluded from the ADA’s protections because they were not deemed to be “disabled” under a strict construction of the statutory definitions. In enacting the ADAAA, Congress rejected several Supreme Court decisions that had narrowly defined “disability” under the ADA, and expanded that definition for the purpose of covering a broader range of individuals. While the ADAAA retains the original definition of disability to include any individual 1) with an impairment that substantially limits one or more major life activities (“actual disability”), 2) who has a record of such an impairment (“record of disability”), or 3) is regarded as having such an impairment (“regarded as disabled”), the ADAAA has altered the interpretation and application of these terms with the intent of making it easier for an individual seeking protection under the ADA to establish his or her disability.

As a result, the EEOC revised its prior regulations to provide guidance on core issues facing employers, such as: (1) what constitutes a “physical or mental impairment”; (2) whether a physical or mental impairment “substantially limits” a life activity; and (3) whether such activity constitutes a “major life activity.”

Definition of Physical or Mental Impairment Is Expanded to Include Pregnancy-Related Impairments.

The definition of “impairment” in the new regulations is essentially the same as the definition in the original ADA regulations, which includes an extensive, but non-exhaustive list of physical and mental disorders. The only minor difference is that the EEOC has now included immune and circulatory systems to the list of body systems that fall within the definition of impairment. Importantly, the regulations clarify that while pregnancy itself is not an impairment, in certain circumstances, a pregnancy-related impairment can qualify as a disability under the statute.

Lower Standard Makes It Easier for Employees to Establish an Impairment That Substantially Limits a Major Life Activity.

Despite requests by commentators, the final regulations do not specifically define the phrase “substantially limits” under the ADAAA. Instead, the EEOC has attempted to provide clarity by eliminating definitions on both ends of the spectrum. Although not every impairment constitutes a disability, the threshold for establishing a disability is lower than the Supreme Court’s previous requirement that the impairment “prevents” or “severely or significantly restricts” a major life activity. Furthermore, the regulations establish nine rules of construction that must be applied in interpreting whether or not a particular individual has a substantially limiting impairment. These rules include:

  • The edict that the phrase “substantially limits” should be construed broadly in favor of the most expansive coverage permissible under the ADA, and should not be interpreted as a “demanding standard.”
  • The rejection of the notion that “scientific, medical, or statistical analysis” or other “extensive analysis” is required to make the comparison between the person claiming to be disabled and the general population.
  • A directive that the focus be upon whether an employer, or other covered entity, complied with their obligations under the ADA and whether discrimination occurred, not on the threshold issue of whether the person’s impairment substantially limits his or her major life activities.

In addition, the regulations and related commentary provided by the EEOC clarify that:

  • The ameliorative effects from an individual’s use of one or more mitigating measures – such as medications, devices that improve hearing, mobility devices and psychotherapy – are not to be considered in determining if an impairment substantially limits a major activity. By way of example, whether kidney disease is substantially limiting will be determined by the effect of the disease on the person’s kidney/bladder functions in the absence of dialysis, rather than based upon the burdens imposed upon the individual by dialysis treatment. The exception to this rule is that the improvement resulting from the use of “ordinary eyeglasses or contact lenses,” which are intended to fully correct visual acuity, can be considered in determining if a visual impairment is substantially limiting.
  • Conversely, the negative effects of mitigating measures, such as side effects or mental changes, may be taken into account in assessing if an impairment is substantially limiting. However, the use or non-use of available mitigating measures, including the resulting consequences and effects, can be considered for assessing if the individual is qualified or poses a safety risk.
  • Impairments that are episodic or in remission can be considered disabilities if they substantially limit a major life activity when they are active. This provision is intended to include people with conditions such as epilepsy or cancer within the protection of the ADA, and to reject the reasoning of some courts that such conditions do not fall within the definition of a substantial limitation simply because they are episodic or intermittent.

In addition to the rules of construction, the new regulations give examples of specific impairments that consistently qualify as substantially limiting. Although the regulations state that there is no “per se” disability and that all impairments are subject to an individualized assessment, certain kinds of conditions will almost always give rise to a finding that they substantially limit a major life activity. For example, blindness substantially limits seeing; an intellectual disability or post-traumatic stress disorder substantially limits brain function; Human Immunodeficiency Virus (HIV) infection substantially limits immune function.

Major Life Activities Need Not Be of Central Importance to Daily Life.

The ADAAA and the new regulations expand the category of major life activities to extend the Act’s protection to a wider range of cases. The ADAAA now includes the operation of major bodily functions (i.e. neurological or respiratory function) within the definition of “major life activities.” The regulations and interpretive guidance further expand the list to include activities such as sitting, reaching and interacting with others. However, the EEOC emphasizes that the list of major life activities found in the statute and the regulations is non-exhaustive. Additional activities will qualify as “major” life activities, because the term will not be interpreted strictly. Indeed, the interpretive guidance states that “[b]ecause impairments, by definition, affect the functioning of body systems, they will generally affect major bodily functions.”

Importantly, an impairment need only substantially limit one major life activity, including a major bodily function, to qualify as a disability under the ADAAA. For example, a person with diabetes is substantially limited in endocrine function and, therefore, may be considered disabled without proving that he or she is substantially limited in eating or other major life activities. Moreover, an employee claiming to be disabled no longer must prove that the activity impacted by the impairment is of “central importance to daily life,” as previously required by the Supreme Court.

In addition, while many courts have grappled with whether working constitutes a major life activity, the EEOC has deemphasized this inquiry by removing the analysis from the new regulations. Instead, the interpretive guidance suggests that an individual with a disability will generally be able to establish that he or she is covered by the ADAAA by showing a substantial limitation of another major life activity.

Employees with a “Record Of” A Substantially Limiting Impairment Are Protected Under the ADAAA Even if Not Actually Disabled.

If an employee has a record of an impairment that substantially limits one or more major life activities, nothing more is needed to establish protection under the “record of” prong of the ADAAA. Even if the employee is no longer impaired, was misclassified as disabled, or the employer was unaware of the relevant record, the employee will be covered. This provision of the ADAAA is designed to prevent discrimination based upon a history of disability. Therefore, if an employer takes an adverse action against an employee based upon a record of a disability in medical, employment or other records, then it will be exposed to liability regardless of whether or not the employee currently has an actual disability.

An Employee Who Is Not Perceived as Substantially Impaired Nevertheless May Be “Regarded As” Disabled and Protected Under the ADAAA

Under the final regulations, whether an individual is “regarded as” having an impairment turns on whether the employer takes an adverse action against an individual because of a perceived impairment. Under the ADAAA, an employee may now obtain legal protections by merely showing that he or she was treated unfairly because of the perceived impairment without having to establish an “actual disability” or that the employer considered the individual to be substantially limited. Under the new regulations, an employer can establish a defense to a “regarded as” claim if it can prove that the impairment was transitory (i.e. having an actual or expected duration of six months or less) and minor. The regulations provide this caveat as a means to address employers’ concerns that individuals with minor or fleeting ailments like the flu could seek protections because they are not required to meet any functional limitation requirement under this prong of the ADAAA.

Importantly, the regulations also clarify that individuals who qualify for protection under the “regarded as” clause are not eligible for reasonable accommodations, unless they establish an actual disability or a record of a disability.

Significance for Employers

The ADAAA, together with the final regulations and interpretive guidance, significantly broaden the scope of protections for employees and reject numerous judicial interpretations of the ADA which served to limit employers’ liability. Because these changes will make it easier for individuals to qualify as disabled under the ADA, employers must be more vigilant about managing their workforce and handling disability issues. Therefore, employers should:

  • Be prepared for an increase in accommodation requests and disability claims given the reduced standards established by the new regulations. More employees may ask for accommodations, even those who are not currently impaired. Employers need to be aware of the obligation to discuss accommodations even with those who have episodic impairments or a past history of disability that requires maintenance or follow up care.
  • Avoid focusing on whether a particular employee is “disabled,” and instead devote more effort to assessing if an individual is qualified or could be with a reasonable accommodation. The new regulations make it fairly easy for an employee to qualify as a disabled person, so accommodating employees whenever reasonable will go a long way toward demonstrating compliance and good faith.
  • Review training manuals, employee handbooks and other policies regarding disabilities to ensure that they are in compliance with the ADAAA and the new regulations.
  • Educate human resource personnel and managers to ensure that they understand the significant changes in the law and the regulations applicable to their interaction with disabled employees. A lack of knowledge can result in inadvertent, and potentially costly, violations of the law.
  • Segregate medical, benefits, attendance/leave and other records that may contain information about an employee’s disability so that perceptions about an employee do not impact employment decisions. An employee’s own personnel file can establish a record of disability even if the employee is not actually disabled. Supervisors, human resources and other agents of the employer must take care to avoid documenting their own assumptions about an employee’s real or perceived impairments. If an employer maintains a personnel file that indicates the employee has a disability, the employee may be protected by the ADAAA even if the classification is erroneous.
  • Reconsider short-term and long-term disability policies that may have automatic termination provisions or other terms that could violate the ADAAA or the new regulations.