On March 25, 2011, the Equal Employment Opportunity Commission (“EEOC”) published its Final Regulations implementing the ADA Amendments Act (“ADAAA”), a law signed by President George W. Bush on September 25, 2008, that was designed to overturn a number of narrow judicial interpretations of the Americans with Disabilities Act (“ADA”). The Final Regulations become effective on May 24, 2011. The EEOC also revised its Interpretive Guidance, an appendix to the agency's ADA regulations, to include examples and explanations related to the Final Regulations. The Final Regulations come after the EEOC considered over 600 public comments on the proposed regulations it issued last fall, including 48 comments from employer associations and industry groups and 536 comments from individuals with disabilities, their family members, and other advocates.
The Final Regulations make clearer than ever that many more employees are now protected from disability discrimination in the workplace than had previously been the case under the courts’ narrow interpretations of the ADA. Employers need to appreciate and react accordingly to many nuances within the Final Regulations. This Legal Alert will provide you with a summary of some of the most important aspects of the Final Regulations. We encourage you to sign up for our webinar on April 13 from 12:30 p.m. to 1:30 p.m. EST for an in-depth discussion of the implications of the ADAAA and its Final Regulations. You can sign up by clicking here.
Expanding the Definition of “Disability”
Many of the Final Regulations come as no surprise and track the language of the ADAAA. For example, the Final Regulations provide, as did the ADAAA, that the definition of "disability" should be construed broadly so that more employees and applicants are protected and suggest that employers should focus not on whether an individual is disabled under the ADA, but on whether a reasonable accommodation can be provided. The most significant manner in which the Final Regulations and Interpretive Guidance attempt to accomplish this mandate is by providing further analysis of the three-pronged definition of "disability" that appeared originally in the ADA. The Final Regulations refer to the three prongs as “actual disability,” “record of disability,” and being “regarded as” disabled.
“Actual Disability:” Major Life Activities Include Bodily Functions
As originally defined in the ADA, an individual has an actual disability if the individual has a physical or mental impairment that substantially limits a major life activity. The ADAAA added provisions designed to ensure that this definition would be broadly construed. In conformity with the ADAAA, the Final Regulations and Interpretive Guidance provide that the determination of whether someone is “substantially limited” in a “major life activity” should “not demand extensive analysis” and “usually will not require scientific, medical or statistical analysis.” Further, the Final Regulations specifically provide that a “major life activity” is not determined by whether it is of “central importance” to daily life. The Final Regulations provide that major bodily functions are themselves major life activities for purposes of the ADA. According to the Final Regulations, these bodily functions include not only the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions, but also the special sense organs, skin, and the genito-urinary, cardiovascular, hemic, lymphatic, and musculoskeletal systems. The Final Regulations also include as a major life activity “interacting with others,” despite protests from employer and industry associations alike.
“Actual Disability:” The Major Life Activity of Working Reworked
Before the ADAAA went into effect, many claimants under the ADA attempted to establish their status as disabled individuals by claiming that they had an impairment that substantially limited them in the major life activity of working. This required them to show that they were restricted not only in their ability to perform a single job, but in their ability to perform an entire class of jobs or a broad range of jobs in various classes.
In the Interpretive Guidance accompanying the Final Regulations, the EEOC points out that with the expansion of the concept of disability achieved by the ADAAA, most individuals will be able to establish coverage by showing substantial limitations of a major life activity other than working. In what the EEOC terms the “rare cases” in which an individual has a need to demonstrate a substantial limitation in the major life activity of working, the EEOC retains the “class or broad range of jobs” formulation previously used to determine if an individual was substantially limited in the major life activity of working. However, the EEOC explains that this standard must be applied differently given the ADAAA. Instead of the “overly strict standard” courts had previously developed, the EEOC states that the terms “class of jobs” and “broad range of jobs in various classes” should be applied in a “more straightforward and simple manner than they were applied by the courts prior to the [ADAAA].” Accordingly, a “class of jobs” may be determined by reference to the nature of the work the individual is limited in performing, (such as commercial truck driving, assembly line jobs, clerical jobs, or law enforcement jobs) or by reference to job-related requirements that an individual is limited in meeting (e.g., jobs requiring repetitive bending or reaching or jobs requiring heavy lifting). The Interpretive Guidance gives as an example an individual whose job requires heavy lifting and who develops an impairment that prevents him from lifting more than 50 pounds. The EEOC states that the individual in this example is substantially limited in working because he is substantially limited in performing the class of jobs that requires heavy lifting.
“Actual Disability:” Per Se Disabilities
Despite comments from both employers and individual advocates criticizing the approach, the Final Regulations contain a list of conditions that “in virtually all cases” meet the definition of "disability." This list includes autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia. The Final Regulations do, however, stress that these conditions are not automatically and always deemed disabilities and that individual assessment is required in all cases to determine whether an individual is disabled. The EEOC observed, however, that with respect to the listed conditions, the individual assessment will ordinarily require only minimal analysis.
“Actual Disability:” Cannot Consider Mitigating Measures
In accordance with the ADAAA, the Final Regulations provide that mitigating measures other than ordinary eyeglasses or contact lenses must not be considered in determining whether an individual is disabled. Based on confusion evident from comments received, the EEOC deleted a reference to “surgical interventions” as an example of a mitigating measure. The EEOC declined to identify any legal consequences that follow from an individual’s failure to use mitigating measures if available, although it did point out in the Interpretive Guidance that the decision to use or not use mitigating measures may be relevant in determining whether the individual is qualified for a position or poses a direct threat to safety. The Final Regulations also affirmatively state that non-ameliorative effects of mitigating measures may be considered in determining whether an impairment is substantially limiting. Thus, the negative side-effects to a medication or treatment for an impairment can be considered when determining whether an individual is substantially limited in a major life activity.
“Actual Disability:” Duration Less Relevant
The Final Regulations continue to include the concept of considering the “condition, manner or duration” of an impairment’s effects as potentially relevant to showing that an individual is substantially limited in a major life activity. However, the potential for considering such factors is significantly limited. The ADAAA extended coverage to individuals with episodic impairments or conditions in remission, if the impairment or condition would substantially limit a major life activity in its active state. In that regard, the Final Regulations provide a non-exhaustive list of episodic impairments, including epilepsy, multiple sclerosis, cancer, major depressive disorder, bipolar disorder, and post-traumatic stress disorder. The Interpretive Guidance provides other examples that include hypertension and asthma. The Interpretive Guidance also provides that although pregnancy itself is not an impairment, a pregnancy-related impairment that substantially limits a major life activity is an actual disability. The EEOC noted that pregnant employees who suffer adverse employment actions may also have a “regarded as” claim for disability discrimination.
The EEOC also declined to require that an impairment last any particular time in order to qualify an individual as “disabled” under the ADA. Several comments to the EEOC's proposed regulations suggested the adoption of a clear-cut rule that an impairment must last longer than six months to qualify as a disability. The EEOC specifically rejected any minimum durational requirement, and the Final Regulations provide that “[t]he effects of an impairment lasting or expected to last fewer than six months can be substantially limiting….”
“Regarded As” Plaintiffs Need Only Prove “Impairment”
The ADAAA expanded the concept of an individual “regarded as” having a disability so that an employee or applicant seeking to bring a “regarded as” claim need not prove the employer believed the individual to have an impairment that substantially limits a major life activity, but merely that the employer perceived the employee as having an “impairment” and based an employment decision on that perception. Because the ADAAA also established that individuals who are merely regarded as having a disability are not entitled to a reasonable accommodation, the Interpretive Guidance makes clear that only individuals seeking reasonable accommodation should be concerned with meeting the “actual disability” prong of ADA protection. In the absence of a claim based on failure to accommodate, the EEOC points out, individuals asserting disability discrimination should bring claims under the easier-to-satisfy “regarded as” prong of the ADA. Thus, a dramatic increase in the number of “regarded as” claims brought under the ADA is likely. The Final Regulations make clear, however, that an employer may offer as an affirmative defense to a “regarded as” claim that the impairment in question was “transitory and minor.”
Although the Final Regulations implement the ADAAA’s provision stating that employers need not offer a reasonable accommodation for individuals who merely meet the “regarded as” prong, the Final Regulations clarify that the same is not true for an individual meeting the “record of disability” prong. It is unclear exactly how and when an employer would be required to offer a reasonable accommodation to an employee who has a record of a disability but does not have a present disability. The Final Regulations merely offer as an example that an employer may have to provide such an employee time off from work as an accommodation in response to a need for follow-up or monitoring treatments. However, if an individual needs such follow up or monitoring treatments, the individual would likely meet the definition of “actual disability.”
The EEOC's Final Regulations interpreting the ADAAA reinforce the expectation that under that law, employers will be far less likely to prevail at summary judgment with an argument that the employee in question was not disabled under the ADA. Unless the employee was seeking a reasonable accommodation, the employee will likely bring a “regarded as” claim, which will require the employee to show only that the employer believed the employee to have an “impairment” and acted based upon that belief. Even if the employee were seeking a reasonable accommodation, proving the employee was actually disabled will be much easier under the ADAAA. Indeed, some employers may find that under the ADAAA and its Final Regulations, the majority of their workforce arguably is disabled.
The Final Regulations convey the message that employers should rethink their approach to the ADA. As a practical matter, in most instances, employers with an employee or applicant seeking a reasonable accommodation can assume that the employee or applicant is indeed disabled and immediately turn their focus to the interactive process for identifying an appropriate accommodation. As more employees will qualify as “disabled,” more employees will also qualify for a reasonable accommodation. The EEOC estimates that the Final Regulations will result in between 2 million and 6.1 million additional requests for reasonable accommodations in the workforce at a cost of between $60 million and $183 million dollars annually.
Employers also need to shift their focus away from whether an individual with an impairment qualifies as “disabled” to whether that individual is otherwise qualified to perform essential job functions, with or without reasonable accommodation. Employers should evaluate their job descriptions, testing procedures, and interactive-process procedures to ensure their accuracy and defensibility.