What you need to know

The Equal Employment Opportunity Commission recently released its final rule implementing the ADA Amendments Act of 2008, which significantly expands who is covered as an individual with a “disability.”

What you need to do

You should be aware of how far coverage under the ADA was expanded, and who is now covered under the broader interpretation, in handling accommodation requests and enforcement matters.

Summary

The EEOC recently released its final rule implementing the ADAAA. The ADAAA was passed in 2008 in response to concern that disputes under the ADA were improperly focused on whether the individual was “disabled,” rather than whether he had been discriminated against because of the disability. The ADAAA significantly expands the definition of disability and allows more people to be covered by the ADA. The final rule provides interpretative tools and guidance for determining whether one qualifies as “disabled” under the ADAAA.

Under the ADAAA, a “disability” still includes either: a) a physical or mental impairment that substantially limits one or more major life activities; b) a record of such an impairment; or c) being regarded as having such an impairment. However, as noted, the final rule explains how these categories are now construed broadly for expansive coverage. The highlights of the changes in the final rule include:

  • The threshold for determining if an individual is “substantially limited” in a major life function has been lowered. To meet the new test, an individual no longer needs to demonstrate that he or she is “severely restricted,” but only that he or she is substantially limited as compared to most people in the general population.
  • Certain impairments will virtually always be found to impose a substantial limitation. These include, but are not limited to, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, bipolar disorder, major depression and schizophrenia.
  • Employers must consider the “condition, manner or duration” in which an individual performs an activity in determining whether he or she is substantially limited. This assessment includes consideration of the difficulty, effort or time required, and the pain involved in performing a major life activity, and/or the way an impairment affects a major bodily function.
  • A major life activity need not be determined by reference to whether the activity is central to daily life. In clarifying this construction, the EEOC has emphasized that “major” should not be construed strictly to create a “demanding” standard.
  • An individual must have either an actual disability or a record of a disability to be eligible for a reasonable accommodation. In other words, simply being “regarded as” having a disability does not entitle an employee to any form of accommodation.
  • However, an individual who is merely “regarded as” having a disability is still protected against an adverse action (such as failure to hire, demotion or termination), whether or not the impairment substantially limits a major life function. The only exception to this broad protection is if the perceived disability involves a transitory (six months or less) or minor impairment.

Guidance for Employers

Employers should understand that the number of conditions that may qualify as protected disabilities has now been dramatically expanded. In turn, this means that more requests for accommodation will need to be considered seriously. Employers can also expect a heightened level of security and enforcement from the EEOC and the courts.