On September 25, 2008, President Bush signed into law the Americans with Disabilities Act Amendments Act ("ADAAA"). The Act, which became effective on January 1, 2009, enacts sweeping pro-employee changes to the Americans with Disabilities Act that was signed into law by the first President Bush in 1990.
On September 23, 2009, the Equal Employment Opportunity Commission (EEOC) published proposed regulations implementing the ADAAA and issued a Question and Answer interpretive guidance on the Act. This triggered a 60-day public comment period, after which the EEOC will issue final regulations and an effective date when they will be implemented.
The proposed regulations – like the ADAAA itself – do not nominally change the scope of the Act. Employees and applicants are covered by the Act only if they have: (i) an impairment that substantially limits one or more major life activities, (ii) a record of such an impairment, or (iii) been regarded as having such an impairment. However, the statute and the proposed regulations in fact dramatically change the scope of coverage. As stated in the ADAAA, the purpose of the new statute was to “reinstate a broad scope of protection” by expanding the definition of the term "disability."
Details of EEOC's Proposed Regulations
The proposed regulations clarify the following under the ADAAA:
- An impairment still must “substantially limit a major life activity” to be a disability. However, to be substantially limiting, no longer must an impairment “significantly” or “severely” restrict a major life activity. Instead, an impairment is a covered 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.” That is, the “determination of whether an individual is experiencing a substantial limitation in performing a major life activity is a common-sense assessment based on comparing an individual’s ability to perform a specific major life activity . . . with that of most people in the general population.”
- Those activities and major bodily functions that constitute “major life activities” also have been greatly expanded. The proposed regulations state that, as a general matter, “[a]n individual whose impairment substantially limits a major life activity need not also demonstrate a limitation in the ability to perform activities of central importance to daily life.” Also, an impairment substantially limits “the major life activity of working if it substantially limits an individual's ability to perform, or to meet the qualifications for, the type of work at issue,” rather than a broad of jobs, as had been the law.
- The proposed regulations supplement the non-exhaustive lists of activities and bodily functions that constitute major life activities as stated in the ADAAA:
- The EEOC adds sitting, reaching and interacting with others as activities that constitute “major life activities.” This is in addition to those activities listed in the Act itself, such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.
- The EEOC adds hemic, lymphatic, musculoskeletal, special sense organs and skin, genitourinary and cardiovascular functions to the list of major bodily functions that constitute major life activities “to make it easier to find that individuals with certain types of impairments have a disability.” This is in addition to the list of major bodily functions listed in the ADAAA, such as normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
- The proposed regulations provide a non-exhaustive list of impairments that—regardless of individual circumstances--“will consistently meet the definition of disability”: deafness, blindness, intellectual disability, partially or completely missing limbs, mobility impairments, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, PTSD, OCD and schizophrenia.
- The proposed regulations reinforce the dictates of the ADAAA that measures to mitigate impairments (i.e., eliminate or reduce symptoms or the impact of impairments) may not be considered in determining whether an individual has a disability. The only exception is that employers may consider ordinary eyeglasses and contact lenses that are used to correct vision, but the EEOC clarifies that an employer may not use qualification standards, employment tests, or other selection criteria based on an individual’s uncorrected vision, unless such a standard is related to the particular job and consistent with business necessity.
- Although the proposed regulations reiterate that temporary, non-chronic impairments of short duration with little or no residual effects usually are not disabilities, they also specify that an impairment that is episodic or in remission qualifies as a disability if it would substantially limit a major life activity when active.
- To be “regarded as” disabled no longer requires that an employer perceive the individual as substantially limited in a major life activity. Rather, an applicant or employee is protected if the employer took an action because of an actual or perceived impairment, or based on a symptom of such an impairment, medication used or any other mitigating measure associated with the impairment. The only exception is if the impairment is transitory (lasting or expected to last for six months or less) and minor. Worth noting, however – a person “regarded as” disabled is not entitled to a reasonable accommodation.
- The proposed regulations clarify that a person has a record of a disability if he or she “has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities” when compared with most people in the general population.
What Employers Should Do
There are various steps that employers should take to avoid liability under the ADAAA:
- Employers should shift their thinking from whether an employee is disabled to whether and what type of reasonable accommodation is appropriate. Congress expressly stated in the ADAAA that “the determination of whether an individual has a disability should not demand extensive analysis.” Stated another way, whether a condition is a disability must be secondary to an employer’s obligations to accommodate. Accordingly, employers should engage in the reasonable accommodation “interactive process” early and often. Remember, an employer need not necessarily provide the reasonable accommodation an employee requests, and accommodations can be as simple as allowing an employee five minutes to stretch or another chair to elevate a foot. Engaging in the interactive process also goes a long way toward defeating a claim of disability discrimination.
- Employers should make sure “all their ducks are in a row” before taking action against someone who may have a disability. Before the amendments, employers often were able to escape liability early by showing that an employee was not disabled. No longer. Now, the key issue may be the employer’s motivations – which may only be examined after time-consuming and expensive discovery and a trial. As the EEOC states, “it will be much easier for individuals seeking the law’s protection to demonstrate that they meet the definition of ‘disability,’ and far more ADA cases will focus on whether discrimination actually occurred.” Employer should make sure that rules are consistently applied and that there is no hint of retaliation before taking any action against an arguably disabled worker.
- Employers should consider centralizing the accommodation review process and/or training supervisors on the new requirements and procedures. With more employees potentially covered by the Act and entitled to accommodations, the risk of disparate treatment and liability grows. To avoid this, supervisors need to understand the new requirements, the risks and how to handle requests for accommodations. Moreover, Human Resources may want to weigh in on accommodation requests, or, at minimum, track accommodations to ensure consistent treatment.
- Employers should not hesitate to submit comments to the EEOC regarding the new regulations. Such comments need not be formal, and your counsel at Wildman Harrold can easily assist you in doing so.