Last month, the EEOC released the long-awaited final regulations construing the ADA Amendments Act of 2008 (“ADAAA”), which become effective on May 24, 2011. The new regulations retain the statutory definition of “disability” as a “physical or mental impairment that substantially limits one or more major life activities, a record (or past history) of such an impairment; or being regarded as having such an impairment.” However, they also incorporate many of the ADAAA’s changes to the interpretations of specific terms. Significant revisions include:
- "Substantially limits " – An impairment no longer need “prevent or severely or significantly restrict” a major life activity to be considered “substantially limiting.” The new regulations also state that the term “substantially limits” should be construed broadly in favor of expansive coverage.
- "Able to perform" - In assessing whether an individual has a disability, the employer may consider only what the individual is unable to do, not what he/she is able to do. Furthermore, the ability to perform a major life activity should be compared to “most people in the general population.” However, in assessing learning disabilities, the new regulations suggest that employers may also analyze “the difference between an individual’s aptitude and actual versus expected achievement.”
- "Virtually always" - The new regulations identify no set of per se disabilities but do state that the required “individualized assessment” of the following impairments will “virtually in all cases” result in the determination of a disability: deafness, blindness, intellectual disability, partially or completely missing limbs or 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.
- "Duration" – The new regulations specify no minimum duration requirement for an impairment. Instead, duration is “only one factor in determining whether the impairment substantially limits a major life activity.” Even short-term impairments may be covered if they are “sufficiently severe.” Episodic or impairments in remission are also covered if they would be substantially limiting when active.
- "Major life activities" – The new regulations expand the definition of “major life activities” through two non-exhaustive lists:
- Activities: “lifting, concentrating, thinking, and working” are now added to the existing list of “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, bending, speaking, breathing, learning, reading, and communicating.” Working is defined as the ability to perform a “class of jobs” or “broad range of jobs in various class compared to most people having comparable training, skills, and abilities.” Driving, sexual relations, and using a computer are not enumerated as “major life activities” but may qualify in particular cases.
- Major bodily functions: e.g., functions of the immune system, special sense organs and skin; normal cell growth, digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, and reproductive function.
- "Migration measures" - Employers must evaluate an individual’s impairment in its “unmitigated state,”with the exception that vision impairments should be evaluated while the employee is wearing his/her contact lenses and ordinary eyeglasses. The mitigating or corrective effect of medication and assistive devices such as hearing aids may not be considered when determining whether someone has a disability.
- "Regarded as" - The question of whether an individual is “regarded as” disabled is no longer based on the employer’s perception of the individual’s impairment. Rather, the individual will be deemed to be “regarded as” disabled if the impairment results in an adverse employment action, such as “refusal to hire, demotion, placement on involuntary leave, termination, exclusion for failure to meet a qualification standard, harassment, or denial of any other term, condition, or privilege of employment”– unless the impairment is both transitory and minor. Unlike those with actual disabilities or a “record of” disabilities, individuals who are merely “regarded as” disabled are not entitled to reasonable accommodation.
Like the ADAAA, the EEOC’s new ADA regulations shift the focus from the “coverage” question of whether an individual is disabled to the “compliance” questions of whether the employer met its obligations of non-discrimination and reasonable accommodation. Therefore, employers should focus their ADA compliance efforts accordingly.