On March 24, 2011, the Equal Employment Opportunity Commission (EEOC) issued final regulations—published in the Federal Register on March 25, 2011—implementing the ADA Amendments Act of 2008 (ADAAA). The final regulations will become effective on May 24, 2011.
The ADAAA went into effect on January 1, 2009, making significant changes to the definition of "disability" under the ADA. On September 23, 2009, the EEOC issued a Notice of Proposed Rulemaking (NPRM), inviting public comment on the proposed regulations.
The final regulations in many respects track the previously issued NPRM. However, the EEOC elected to streamline the final regulations in a number of significant areas by removing proposed language from the NPRM that had been viewed by both employer and employee groups as confusing or beyond the scope of the EEOC's authority, as well as by adding clarifying language to address issues raised in the public comments.
Below is an analysis of some of the key parts of the final regulations. (For a review of the changes implemented by the ADAAA and an analysis of the NPRM, please see the September 18, 2009, Alert, "EEOC Approves Proposed ADA Regulations Broadening Definition of Disability" and the September 24, 2009, Alert, "EEOC Issues Proposed Revisions to ADA Regulations and Interpretive Guidance."
Broad Coverage of Disabled Individuals Under the ADA
The final regulations, comporting with one of the rules of construction set forth in the ADAAA, provide that the definition of "disability" should be "broadly" construed "to the maximum extent permitted by the terms of the ADA." While the final regulations track the three-part definition of "disability" retained under the ADAAA—(1) a physical or mental impairment that substantially limits a major life activity, (2) a record of such an impairment and (3) being regarded as having such an impairment—the final regulations indicate that there will be a shift in focus in ADA cases to whether covered entities have complied with their obligations and whether discrimination occurred, as opposed to whether an individual meets the definition of "disability."
Definition of "Major Life Activity" Expanded Beyond the ADAAA
The ADAAA added a specific, non-exhaustive list of "major life activities," including "major bodily functions." The NPRM, in turn, included its own list that was more expansive than that listed in the ADAAA. Employer groups expressed disapproval of the NPRM's expansion, contending that the EEOC had exceeded its authority in including examples of "major life activities" and "major bodily function" beyond what was specifically stated in the statute.
In response, the EEOC noted in the explanatory section of the final regulations that the text of the ADAAA specifically provides that the lists of "major life activities" and "major bodily functions" are "non-exhaustive." Furthermore, the EEOC noted that it is authorized to recognize additional examples of major life activities. Thus, the final regulations include the NPRM's additional "major life activities" of "sitting," "reaching" and "interacting with others," as well as the NPRM's additional "major bodily functions" of "special sense organs" and "skin," "genitourinary," "cardiovascular," "hemic," "lymphatic" and "musculoskeletal" functions. The newly added "operation of an individual organ within a body system" is also included as a "major bodily function."
Expansion of "Substantially Limits"
The ADAAA broadened the definition of "substantially limits," and the NPRM provided various rules of construction to be applied in making that determination. The final regulations expand upon these rules and now include nine rules of construction to be applied when determining whether an impairment "substantially limits" a major life activity:
- The definition of "substantially limits" shall be construed broadly in favor of "expansive coverage."
- The determination of whether an impairment "substantially limits" a major life activity requires an individualized assessment.
- An impairment need not prevent, or severely or significantly restrict, a major life activity in order to be "substantially limiting."
- The primary focus of the ADA is on whether discrimination occurred, not on whether an individual's impairment substantially limits a major life activity.
- An impairment that "substantially limits" one major life activity need not substantially limit other major life activities to be considered "substantially limiting."
- An impairment in remission or one that is episodic may qualify as a disability if the impairment would "substantially limit" a major life activity when active.
- The determination of whether an impairment "substantially limits" a major life activity shall be made without regard to the ameliorative effects of mitigating measures (with the exception of eyeglasses or contact lenses).
- Short-term impairments (those less than six months in duration) can be "substantially limiting."
- The determination of whether an impairment "substantially limits" a major life activity as compared to most people in the general population will not usually require scientific, medical or statistical evidence. (In response to public concern that the NPRM's rule of construction prevented employers from obtaining information to confirm, for instance, the medical need for an accommodation, the final regulations clarify that such evidence may be used, if appropriate.)
Furthermore, in response to public comments, the final regulations reinserted the concepts of "condition, manner, or duration"—which had been used in the ADA's original regulations in 1991, but had been removed in the NPRM—as factors that may be relevant in certain cases to determine whether an impairment substantially limits a major life activity. However, in light of the rules of construction, the final regulations provide that the analysis of these factors may "often be unnecessary" in analyzing whether an impairment substantially limits a major life activity.
Listing of Disabilities
The NPRM provided a listing of impairments that would "consistently meet" the definition of disability, as well as listings of impairments that might meet the definition of disability and those impairments that would not likely meet the definition. Public comment expressed that the NPRM's lists were confusing and created a per se list of disabilities, contrary to the ADA's dictate that the determination of whether someone is disabled should be based upon an individualized assessment.
The final regulations no longer contain the latter two lists. Instead, the final regulations retain only the single list of impairment examples that, based on an individualized assessment, will "easily be concluded to be disabilities" and, according to the EEOC, will result in a determination of coverage under the ADA in "virtually all cases." Such examples provided include deafness, blindness, intellectual disability, missing limbs, autism, cancer, cerebral palsy, diabetes, multiple sclerosis, HIV infection, muscular dystrophy, major depressive disorder, bipolar disorder and schizophrenia.
The final regulations no longer contain the NPRM's detailed discussion of what it means to be substantially limited in the major life activity of "working." Instead, the EEOC relocated this discussion in the appendix to the final regulations. The appendix retains the existing legal framework that considers whether an impairment substantially limits an individual from working in a "class or broad range of jobs," rejecting the NPRM's reference to "type" of work or job.
The ADAAA provides that a determination of whether an impairment substantially limits a major life activity shall be made without reference to the ameliorative effects of mitigating measures (except for ordinary eyeglasses and contact lenses). The NPRM suggested a non-exhaustive list of mitigating measures, including hearing aids, mobility devices and surgical interventions. The final regulations expand this list to include mitigating measures, such as psychotherapy, behavioral therapy and physical therapy.
In response to public inquiry, the final regulations confirm that the side effects of the use of mitigating measures may be considered in determining whether the individual is substantially limited in a major life activity. Moreover, the EEOC confirmed that both the positive and negative effects of mitigating measures may be considered in determining whether an individual poses a direct threat and requires a reasonable accommodation.
The Definition of "Regarded as"
The ADAAA expands the "regarded as" disabled analysis under the ADA by prohibiting discrimination based on an individual's impairment or an employer's perception of an impairment, regardless of whether the impairment limits or is perceived to limit a major life activity.
The final regulations confirm that an employer may challenge a claim under this part of the definition of disabled by establishing that the condition is transitory and minor or perceived to be transitory and minor. However, the final regulations clarify that an employer is not entitled to this defense by claiming that it subjectively believed that the impairment was transitory and minor, unless the impairment objectively is or would be both transitory and minor.
What This Means for Employers
The EEOC's final regulations appear to support the ADAAA's focus on expanding the protections of the ADA. Employers should anticipate that it may be more difficult to challenge an individual's coverage under the ADA. Notwithstanding that more individuals will be deemed disabled under the ADA than under the prior legal framework, there are areas in which employers should consider focusing to potentially defend against disability discrimination and failure to accommodate claims.
For instance, to defend against a discrimination claim, an employer may want to clearly and contemporaneously document the legitimate, nondiscriminatory reasons for the adverse action (e.g., discipline, discharge of employment) taken against the employee.
Employers should also be aware that the new focus in ADA cases is on whether covered entities have complied with their obligations, including the obligation to reasonably accommodate. Thus, in close cases where it is unclear if an individual is disabled, employers are advised to proceed to engage in the interactive process with an individual requesting accommodations, rather than just addressing whether or not the individual meets the definition of disabled. Therefore, an employer should conduct and adequately document the individualized assessment of all aspects of the accommodation process, such as the extent to which a requested accommodation is unreasonable and cannot be provided without an undue hardship or the extent to which permitting the individual to work, with or without a reasonable accommodation, would present a direct risk to the individual or others.