The final regulations to the ADA Amendments Act (“Amendments Act”) became effective May 24, 2011, and will make it easier for employees to claim a disability under the Americans with Disabilities Act (“ADA”). While the Amendments Act retained the basic definition of “disability,” the final regulations provide — for the benefit of employees — a much broader interpretation of this term, enabling employees to more easily establish that they have a disability. For employers, that may mean a rise in claims by employees who will seek protection for a condition that may not previously have been considered a “disability” under the ADA. Going forward, employers likely will spend less time determining whether an employee is disabled, and more time assessing whether the individual is qualified to perform the essential functions of the job and whether a reasonable accommodation can be provided without undue hardship to the company.
The Amendments Act, signed into law on September 25, 2008, with a statutory effective date of January 1, 2009, makes it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA. The Amendments Act retained the ADA’s basic definition of “disability”:
- A physical or mental impairment that substantially limits one or more major life activity (the “actual disability” prong);
- A record (or past history) of such an impairment (the “record of” prong); or
- Being regarded as having such a disability (the “regarded as” prong).
The Amendments Act changed the way several statutory terms within that definition should be interpreted. The final regulations and interpretative guidance to the Amendments Act help to implement such changes. The more significant modifications in the final regulations are highlighted below.
Rules of Construction
The final regulations adopted “rules of construction” to use when determining if an individual is “substantially limited” in performing a major life activity, a determination that should be made on an individualized basis. The term “substantially limit” should be construed broadly in favor of expansive coverage. Indeed, mitigating measures (other than ordinary eyeglasses or contact lenses) cannot be considered in determining whether an individual has a “disability”. Moreover, an impairment that is episodic or in remission meets the definition of “disability” if it would substantially limit a major life activity when active.
Major Life Activities
The final regulations provide a non-exhaustive list of activities that constitute “major life activities,” including concentrating, thinking, communicating and interacting with others. This term also should be interpreted expansively. The term “major life activities” now also includes “major bodily functions,” such as functions of the immune system, normal cell growth, and brain, neurological and endocrine functions. “Major bodily functions” can include the “operation of an individual organ within a body system.”
Per Se Disabilities
The final regulations provide a list of impairments that should “easily be concluded to be impairments” when the rules of construction are applied. Such impairments include epilepsy, diabetes, cancer, HIV infection and bipolar disorder. Although the ADA requires an individualized assessment, as a practical matter, employers should expect that the impairments listed will likely qualify as a disability.
“Regarded As” Prong
The final regulations make it easier for individuals to establish coverage under the “regarded as” prong of the definition of “disability.“ Under the Amendments Act and final regulations, an employer “regards” an individual as having a disability if it takes an action prohibited by the ADA (i.e., failure to hire, termination or demotion) based on the individual’s impairment or an impairment the employer believes the individual to have. The new formulation no longer requires the employer to believe that the individual’s impairment or perceived impairment substantially limits performance of a major life activity. An individual is not eligible for a reasonable accommodation under this prong, and the impairment cannot be both transitory (less than six months) and minor.
Implications and Tips for Employers
The Amendments Act and final regulations have broadened the definition of “disability,” making it easier for an individual to claim protection under the ADA. Employers should therefore expect an increase in claims filed with the Equal Employment Opportunity Commission and accordingly, lawsuits filed in court. Moreover, because the definition of what constitutes a disability has been substantially expanded, it is likely that fewer disability discrimination cases will be dismissed at the preliminary stages. Therefore, employers should shift their focus from whether an individual has a disability to whether the individual is qualified to perform the essential functions of the job and whether a reasonable accommodation can be provided without undue hardship.