On March 25, 2011, the Equal Employment Opportunity Commission (EEOC) issued final regulations revising regulations under Title I of the Americans with Disabilities Act in order to implement the employment provisions of the ADA Amendments Act of 2008 (ADAAA). As expected, the final regulations, which take effect May 24, 2011, carry out Congress’ mandate that the ADAAA be construed in favor of broad coverage and that the determination of whether an individual has a disability should not require extensive analysis. Thus, the ADAAA and EEOC’s final regulations make it much easier for an individual to establish that he/she has a disability and are intended to place the focus of litigation on whether discrimination has occurred and/or whether an employer has satisfied its obligations – not on whether the individual has a disability. Therefore, employers need to approach potential accommodation with more caution than ever to ensure the best strategy for minimizing liability.

Several of the new regulations highlight the EEOC’s expansive interpretation of the ADAAA. First, even though the ADAAA was the product of extensive negotiations in which all the interested parties agreed that the statute would not include a list of per se disabilities, the final regulations includes a list of conditions that the EEOC opines “should easily be concluded to be disabilities.” These conditions include: deafness, blindness, intellectual disability (formerly known as mental retardation), partially or completely missing limbs, mobility impairments requiring use of a wheelchair, 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. Although EEOC emphasizes that inclusion of such a list does not depart from the “hallmark individualized assessment” required under the ADA, it asserts that the necessary individualized assessment of these impairments should be “particularly simple and straightforward” and that the impairments will be disabilities in “virtually all cases.” The final regulations do not include the originally proposed list of impairments that may be substantially limiting for some individuals but not others, based on a concern that such a list suggested that these impairments were of “lesser significance.”

Second, the regulations’ interpretation of “substantially limits” post-ADAAA stresses the EEOC’s far-reaching interpretation of that term. The regulations set forth nine “rules of construction” to govern the assessment of whether an impairment is substantially limiting:

  1. “Substantially limits” will be construed broadly to the maximum extent permitted by the terms of the ADA and is not meant to be a demanding standard.  
  2. An impairment constitutes a disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent or significantly restrict the individual from performing a major life activity in order to be considered substantially limiting.  
  3. The primary focus in cases brought under the ADA should not be whether an individual’s impairment substantially limits a major life activity, which should not demand extensive analysis. Instead, the focus should be whether covered entities have complied with their obligations and whether the alleged discrimination has occurred.  
  4. The determination of whether an impairment substantially limits a major life activity requires an individualized assessment. However, in making this assessment, the term “substantially limits” will be interpreted and applied to require a degree of functional limitation that is lower than the standard for “substantially limits” applied pre-ADAAA.  
  5. The comparison of an individual’s performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical analysis.  
  6. The determination of whether an impairment substantially limits a major life activity will be made without regard to the ameliorative effects of mitigating measures. However, the ameliorative effects of ordinary eyeglasses or contact lenses will be considered in determining whether an impairment substantially limits a major life activity.  
  7. An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.  
  8. An impairment that substantially limits one major life activity need not substantially limit other major life activities in order to be considered a substantially limiting impairment.  
  9. When assessing whether an individual has either an “actual disability” or “record of disability”, the effects of an impairment lasting or expected to last fewer than six months can be substantially limiting.  

While the EEOC has included examples intended to aid in the interpretation of “substantially limits” in the accompanying interpretive guidance codified as an appendix to the final regulations, EEOC declined to affirmatively quantify “substantially limits” in the final regulations. EEOC concluded that Congress rejected such an approach and that including a definition would lead to greater focus and intensity of attention on the threshold issue of coverage than intended by Congress. Accordingly, the final regulations offer employers little concrete help in identifying the threshold at which an impairment qualifies as “substantially limiting,” aside from that fact that it is a lower threshold than previously adopted by the U.S Supreme Court and the EEOC. In a reversal from the proposed regulations, EEOC has retained language stating that consideration of the condition, manner, or duration of an individual’s ability to perform a major life activity can be useful in determining whether the individual is substantially limited in a major life activity; EEOC notes in its commentary, however, that these concepts often may be unnecessary in determining whether an impairment is substantially limiting. Omission of these concepts (which were in the 1991 regulations in effect until now) from the proposed regulations had generated significant comment from both employers and groups representing individuals with disabilities.  

Third, the regulations expressly state that in cases not involving failure to provide reasonable accommodation, the evaluation of whether the person has a disability can be made solely under the “regarded as” prong of the definition of disability, which does not require any showing that an impairment substantially limits a major life activity. An individual is regarded as having a disability if that individual is subjected to a prohibited action based on an actual or perceived impairment, irrespective of whether the impairment limits or is perceived as limiting a major life activity. Impairments that are both transitory (defined as lasting or expected to last six months or less) and minor cannot serve as the basis for “regarded as” claims, but this exception does not apply to claims based on an actual disability or “record of” a disability. Whether the impairment is transitory and minor must be determined objectively; an employer’s subjective belief is irrelevant.  

The regulations also address the following issues:

  • Mitigating Measures: As noted above, the determination of whether an impairment substantially limits a major life activity will be made without regard to the ameliorative effects of mitigating measures (except ordinary eyeglasses or contact lenses). The regulations provide numerous examples of mitigating measures including: Medication, medical supplies, equipment, or appliances, low-vision devices, prosthetics (including limbs and devices), hearing aids and cochlear implants, mobility devices, oxygen therapy equipment, use of assistive technology, reasonable accommodations or “auxiliary aids or services”, learned behavioral or adaptive neurological modifications, or psychotherapy, behavioral therapy and physical therapy. Both ameliorative and non-ameliorative effects of mitigating measures, as well as the individual’s use or non-use of such measures, can be considered in other determinations under the law, such as whether an individual is qualified or poses a direct threat to safety.  
  • Major Life Activities: The final regulations provide a non-exhaustive list of examples of major life activities including: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working. The final regulations do not include the proposed definition of “major life activities” as those basic activities most people in the general population can perform with little or no difficulty; EEOC concluded that while ability to perform an activity is relevant in determining if an impairment is substantially limiting, it is irrelevant to whether an activity is a major life activity.

The final regulations also state that major life activities include the operation of major bodily functions, including functions of the immune system, special sense organs and skin, normal cell growth, digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. The final regulations clarify that major bodily functions include the operation of an individual organ within a body system (for example, the operation of the kidney, liver, or pancreas).

As a result of the ADAAA’s recognition of major bodily functions as major life activities, it will most assuredly be easier to find that a wide array of individuals with certain types of impairments have a disability.

  • “Regarded as” Having a Disability: Whereas the proposed regulations expressly stated that prohibited actions based on symptoms of an impairment or on the use of mitigating measures also can establish a “regarded as” claim, even if the employer is not aware of the nature of the underlying impairment, this provision has been omitted from the final regulations. Employers and organizations representing employers had expressed concern that this provision could result in employers being held liable under the ADA for disciplining an employee for violating a workplace rule, where the violation resulted from an underlying impairment of which the employer was unaware. In removing this proposed provision, EEOC noted that this issue is complex and requires more comprehensive treatment that is possible in the regulation; it also noted, however, that its existing position on this issue remains unchanged.  
  • Reasonable Accommodation: Employers are not required to provide a reasonable accommodation to individuals who are only “regarded as” having a disability.  
  • Substantially Limited in Working: The proposed regulations sought to define substantially limiting in the major life activity of working with respect to “type of work,” as opposed to a class or broad range of jobs as set forth in the 1991 regulations. EEOC has removed the entire discussion regarding substantial limitation in working from the final regulations, relocating it to the interpretive guidance. EEOC has retained the original reference to class or broad range of jobs, but explains that these concepts will be applied in a more straightforward and simple manner than applied by courts prior to the ADAAA. EEOC also emphasizes that in most instances an individual will be able to establish coverage via a substantial limitation on a major life activity other than working.  
  • Qualification Standards and Tests Related to Uncorrected Vision: Employers may not use qualification standards and tests based on an individual’s uncorrected vision unless the standard or test is job-related and consistent with business necessity. A person need not be an individual with a disability in order to challenge such standards or tests.  

EEOC has issued a “Q&A” document that answers certain questions about the final regulations, as well as a fact sheet on the final regulations. The Q&A document is available at http://www.eeoc.gov/laws/regulations/ada_qa_final_rule.cfm; the fact sheet is available at http://www.eeoc.gov/laws/regulations/adaaa_fact_sheet.cfm.

The regulations represent an expansive interpretation the EEOC is applying to the ADAAA, which took effect on Jan. 1, 2009. Accordingly, employers need to exercise caution in making employment decisions, including decisions regarding reasonable accommodation, to insure that they do not run afoul of the ADAAA.