The Americans with Disabilities Act Amendments Act of 2008 (the “ADAAA”) which went into effect on January 1, 2009, imposed across-the-board changes to the Americans with Disabilities Act (the “Act”). The ADAAA offers broad protection to individuals with disabilities by making it easier for individuals to establish they have a disability and garner protection under the Act. The Equal Employment Opportunity Commission (the “EEOC”) published proposed regulations implementing the Act on September 23, 2009. Consistent with Congress’ expressed intent in passing the ADAAA, the proposed regulations broaden the Act’s coverage significantly by expanding the definitions of several key terms and concepts used to determine whether an individual is disabled within the meaning of the Act. This Alert highlights some of the changes proposed by the EEOC.
“Major Life Activity”
While the EEOC’s proposed regulations retain the definition of “disability,” the regulations define “major life activities” as activities that “most people in the general population can perform with little or no difficulty,” and provide two non-exhaustive lists of such activities. The first list tracks the ADAAA’s list of examples of “major life activities” and includes activities 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’s proposals add reaching, sitting and interacting with others to the list of “major life activities” included in the ADAAA.
The EEOC’s proposed second list of activities includes the operation of “major bodily functions,” and adds functions of the hemic, lymphatic and musculoskeletal systems, special sense organs and skin, genitourinary, and cardiovascular functions to the major bodily functions identified by the ADAAA. Consistent with the ADAAA’s provisions, the list also includes functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. For example, according to the EEOC, cancer and diabetes would probably qualify as impairments that substantially limit major life activities because cancer affects the major bodily function of normal cell growth and diabetes affects the major bodily function of the endocrine system.
The EEOC’s proposed regulations provide that an impairment need not “severely” or “significantly” restrict performance of a major life activity or bodily function to be “substantially limiting.” Rather, the impairment must “substantially limit” an individual’s ability to perform a specific major life activity “as compared to most people in the general population.” Also, an impairment that substantially limits one major life activity need not limit other major life activities.
The EEOC’s proposed regulations further present two categories of impairments that substantially limit major life activities. The first category includes examples of impairments that “will consistently meet the definition of disability,” when analyzed in light of the ADAAA’s directives. Such per se disabilities include deafness, blindness, intellectual disability, partially or completely missing limbs, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, a number of mental diseases, multiple sclerosis, and muscular dystrophy.
The second category of impairments includes those impairments that may be substantially limiting for some individuals, depending upon further analysis. Such impairments include asthma, high blood pressure, learning disabilities, a back or leg impairment, psychiatric impairments, carpal tunnel syndrome and hyperthyroidism. Although the identification of those specific impairments does not foreclose a more detailed analysis to determine if the impairments qualify as a “disability,” the proposed regulations underline that the analysis should not be extensive. Also, impairments that are “episodic or in remission” could qualify as disabilities if they would substantially limit a major life activity when active (e.g., epilepsy, asthma, cancer, psychiatric disabilities such as major depression, etc.).
The EEOC’s proposed regulations direct that, other than “ordinary eyeglasses or contact lenses,” mitigating measures may not be taken into account in determining whether an individual has a disability. Mitigating measures that no longer may be considered include medication, medical supplies and equipment, prosthetics, hearing aids, implantable hearing devices, oxygen therapy, assistive technology, behavioral modifications, as well as surgical interventions that do not permanently eliminate an impairment.
Major Life Activity of “Working”
The EEOC’s proposals eliminate the requirement that to be substantially limited in the major life activity of “working,” an individual must be prevented from working in a “class” or “broad range” of positions. Instead, 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.” “Type of work” may include jobs such as commercial truck driving, assembly line work, or “job related requirements” such as repetitive bending, reaching or manual tasks, repetitive or heavy lifting, prolonged sitting or standing, extensive walking, or working irregular or excessively long shifts.
“Regarded as” Disabled
The ADAAA significantly expanded the circumstances under which an employer may be deemed to have regarded an individual as disabled. Pursuant to the proposed regulations, an employer “regards” an applicant or employee as disabled when an employer takes an adverse action against an individual (e.g., failure to hire, demotion, termination) based on an actual or perceived impairment, unless the impairment is “transitory” (lasting or expected to last for six months or less) and minor. Thus, an individual is no longer required to show that the employer perceived the individual to be substantially limited in the performance of a major life activity. Importantly, however, employers have no obligation to reasonably accommodate an individual who is “regarded as” disabled as compared with a person with a disability.
Currently, the EEOC is reviewing the comments it received following publication of the proposed regulations in the Federal Register, and anticipates implementing its final regulations sometime in July, 2010. Because the proposed regulations broaden the definition of “disability” and lower the standards to qualify as a disabled person, employers can expect to see a sharp increase in employees’ requests for workplace accommodations. To minimize their liability for future disability discrimination claims, employers should act now by providing managers and human resources personnel with training to fully understand the EEOC’s revised regulations in order to be able to recognize situations in which an employee’s rights under the Act may be implicated and to ensure proper responses.