On March 25, 2011, the Equal Employment Opportunity Commission (EEOC) published the longawaited final regulations implementing the ADA Amendments Act of 2008 (ADAAA), which took effect on January 1, 2009. The ADAAA was intended to make it easier for individuals seeking protection under the Americans With Disabilities Act (ADA) to establish that they have a disability under the statute, so that the focus in disability cases would be shifted from resolving whether an individual has a covered disability to addressing whether an employer took appropriate steps to make reasonable accommodations for the employee. The regulations and accompanying interpretative guidance confirm that the scope of coverage under the ADA is now much broader than it was prior to the ADAAA.
Several of the key aspects of the final regulations are as follows:
- Expanded Meaning of “Substantially Limits.” While the statutory definition of a “disability” as a “physical or mental impairment that substantially limits a major life activity” has not changed from the original ADA, the meaning of “substantially limits” has changed significantly. Prior to the passage of the ADAAA, an impairment had to significantly restrict or prevent an individual from performing a major life activity to be substantially limiting. While the EEOC failed to establish a precise definition of the term in the new regulations, the regulations set forth several rules of construction that make clear that the degree of functional limitation required for an impairment to be substantially limiting is much lower than it used to be. For example, the regulations provide that the term “substantially limits” is to be construed broadly in favor of expansive coverage. The regulations also provide that the determination of whether an impairment is substantially limiting requires an individualized assessment that should not require extensive analysis and will not ordinarily require medical, scientific or statistical evidence. The individualized assessment must be made without regard to the ameliorative effects of mitigating measures such as medication.
- Duration of Impairment. Prior to the ADAAA, it was the EEOC’s position that an impairment needed to last at least several months to be considered substantially limiting. The new regulations make clear that there is no minimum durational requirement for an impairment to be considered substantially limiting. This means that conditions of a very short duration may now be covered disabilities under the ADA if they are sufficiently severe.
- “Virtually Always” Impairments. While the regulations preserve the individualized assessment that has always been required to determine whether an individual is substantially limited in a major life activity, the EEOC now also recognizes that certain impairments will virtually always qualify, and for these conditions, the individualized assessment should be simple and straightforward. Such impairments include blindness, deafness, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy and a variety of mental impairments.
- Expansion of Major Life Activities. The ADAAA also broadened the scope of what are to be considered major life activities to include “major bodily functions” such as lymphatic, musculoskeletal, special sense organs and skin, genitourinary and cardiovascular functions. Consistent with the statute, the regulations set forth a non-exhaustive list of major bodily functions and other major life activities. The final regulations make clear that a “major life activity” need not be one that is “of central importance to daily life.”
- Expansion of “Regarded As” Prong of Disability. The regulations recognize that the ADAAA significantly broadened the “regarded as” prong of the definition of disability such that an individual no longer needs to establish that an employer regarded him as being substantially limited in a major life activity to pursue a “regarded as” claim. Instead, the employee need only establish that the employer took a prohibited action based on the employer’s belief that the employee had an actual or perceived impairment, without regard to whether the impairment was perceived to substantially limit a major life activity, so long as the impairment is not both transitory (less than six months in duration) and minor. Finally, the regulations confirm that reasonable accommodations are not available to individuals who claim to be “regarded as” disabled and if a reasonable accommodation is sought the individual must have an impairment that substantially limits a major life activity or a record of such an impairment.
In issuing these final regulations, the EEOC has provided guidance about how to interpret some parts of the ADAAA and also raised new questions about how some aspects of the law will be construed. Because the components of the definition of “disability” have been so broadly construed, employers defending claims of disability discrimination will not be as successful arguing that an employee is not disabled. Instead, the analysis will be more likely to turn on whether the employee is qualified to perform essential job functions with or without a reasonable accommodation and whether the employer took appropriate steps to identify and provide reasonable accommodations.
Since the ADAAA has been in effect since January 1, 2009, employers should not delay in understanding and complying with the newly published regulations. Employers should use the issuance of the regulations as an opportunity to train and educate supervisors and human resources personnel on properly recognizing and responding to employee requests for accommodation.