In May 2011, over two and a half years after Congress enacted the Americans with Disabilities Act ("ADA") Amendments Act of 2008 ("ADAAA"), the final regulations implementing the ADAAA, issued by the Equal Employment Opportunity Commission ("EEOC"), took effect. The EEOC broadly construed the ADAAA and expanded the definition of a "disability," thereby increasing an individual's ability to demonstrate he or she is disabled. Though the broadened scope of the ADA is not necessarily beneficial to employers, an understanding of the regulations and their practical effect will assist employers in dealing with the increasing number of individuals who will now qualify as disabled under the law.
Congress Expands the Scope of Protection of the ADA
Enacted on September 28, 2008, and effective on January 1, 2009, the ADAAA's chief purpose was to reinstate a "broad scope of protection" for disabled individuals by expanding the definition of the term "disability" under the ADA. Congress had concluded that several recent Supreme Court cases inappropriately narrowed the broad coverage intended by Congress in passing the ADA. Finding that persons with various types of impairments, including epilepsy, multiple sclerosis, diabetes and major psychological disorders, such as clinical depression and bipolar disorder, had been unsuccessful in satisfying the ADA's definition of "disability," Congress intended to re-expand the definition of "disability" and, therefore, the scope of protection of the ADA, through the ADAAA. Congress stated that the ADAAA would "carry out the ADA's objectives by providing 'a clear and comprehensive national mandate for the elimination of discrimination' and 'clear, strong, consistent, enforceable standards addressing discrimination' by reinstating a broad scope of protection to be available under the ADA." Accordingly, the ADAAA directed the EEOC to revise its ADA regulations to conform to the changes made by the ADAAA.
The EEOC's Expansion of the Definition of "Disability"
As a result of the ADAAA and the EEOC's implementing regulations, more employees will qualify as disabled. As a result, many more employees will be successful in seeking the protections of the ADA. While the ADAAA and the regulations retain the same three-prong definition of "disability" as set forth in the ADA, the regulations expand the interpretation of this term in several ways that are significant for employers.
The first prong of the "disability" definition focuses on a physical or mental impairment that substantially limits one or more major life activities (sometimes referred to as an "actual disability"). The EEOC regulations broadly define physical or mental impairment to include a physiological disorder, cosmetic disfigurement, as well as disorders affecting at least one body system such as neurological, respiratory, cardiovascular, digestive, circulatory, or immune, among others. Significantly, pregnancy is specifically excluded. The regulations also provide a non-exhaustive list of activities that qualify as "major life activities," including seeing, hearing, eating, walking, sleeping, standing, lifting, communicating, and working.
Notably, the regulations categorize "major bodily functions," such as those of the immune, respiratory and reproductive systems, as well as the operation of an individual organ, as major life activities. This means that an individual who has an impairment that substantially limits the operation of a kidney, liver, or pancreas now could qualify as disabled.
Record of a Disability
An individual with a "record" of a physical or mental impairment that substantially limits a major life activity also qualifies as disabled under the ADA. This prong of the definition of a disability differs from the Actual Disability prong in that it would cover an individual who does not currently have the requisite impairment, but in the past met the definition of disability. Both the first and the second prongs require assessment as to whether there is a substantial limitation on a major life activity. The EEOC regulations provide "rules of construction" to guide this analysis. Those rules heavily favor the individual because they provide that the term "substantially limits" be construed broadly, be considered on an individualized basis, and be decided without medical, scientific, or statistical documentation. Moreover, a disability that is "episodic or in remission" can fall within the scope of ADAAA if it would substantially impair a major life activity when active. Though this provision is particularly applicable to individuals with psychiatric disabilities, it also extends to those with epilepsy, hypertension, asthma, diabetes, and cancer. The regulations also clarify that an individual can make a claim under either of the first two prongs of the disability definition for a temporary disability lasting less than six months.
All of the most significant provisions of the EEOC regulations in regard to the Actual Disability prong apply to the Record of a Disability prong as well, including the expanded definition of a major life activity, the lower threshold for finding a substantial limitation, and the clarification that impairments that are temporary, episodic, or currently in remission can be classified as disabilities under the law.
Regarded as Having a Disability
The last prong of the definition of a disability applies where an employer takes an action prohibited by the ADA because of an individual's actual or perceived impairment. An employee seeking a reasonable accommodation from his or her employer must do so under the Actual Disability or Record of a Disability prong of the disability definition. An individual who is merely "regarded as" having a disability by her employer will not be eligible for a reasonable accommodation. However, she still is protected from discriminatory treatment.
The Effect of Mitigating Measures on Claims Under the ADA
In addition to expanding the scope of the term "disability," the EEOC regulations also prohibit the consideration of "mitigating measures" in the assessment of whether an individual does or does not have a disability. The phrase "mitigating measures" refers to measures an individual takes to minimize or eliminate symptoms or the impact of a physical or mental impairment. Some examples are medication and assistive devices, such as a hearing aid, walker or cane. Now, with the passage of the ADAAA, the ameliorative effects of mitigating measures, except for ordinary eyeglasses and contact lenses, cannot be considered by the employer in the disability assessment. Even more extreme, if a disability can be mitigated but the individual employee simply chooses not to mitigate it, this can neither be held against the individual, nor can the employer require the individual to take any mitigating measures. However, the regulations direct that mitigating measures may be considered in other contexts, such as in determining the need for a reasonable accommodation for the employee.
What Stays the Same After the ADAAA
The majority of the changes implemented by the ADAAA through the EEOC's regulations addressed the scope and applicability of the term "disability." The ADAAA and the final regulations do not alter the definitions of other key ADA terms, such as "qualified," "direct threat," "reasonable accommodation," or "undue hardship." The regulations also specifically provide that no changes resulting from the ADAAA alter the standards for eligibility under State workers' compensation laws or under Federal and State disability benefits programs.
Moving Forward in a Post-ADAAA World
The legal effect of the ADAAA and its implementing regulations is to shift the focus of the inquiry away from the threshold issue of an individual's qualification as disabled and instead places the emphasis on the merits of an individual's claim to determine whether disability discrimination actually occurred. As a result, employers will be significantly limited in their argument that an employee does not meet the definition of disabled. As a result, employers will face more requests for reasonable accommodations and increased liability for ADA/ADAAA violations.
Because the ADAAA regulations emphasize the need to assess whether an impairment substantially limits a major life activity on an individualized basis, it is now more important than ever that employers put in place well-defined channels through which employees can communicate with human resource departments. As always, it is imperative that conversations are well-documented and maintained throughout the course of the individual's employment and for a period of time thereafter. Finally, as the number of employees able to establish a disability under the ADA increases, well-established procedures that enable the employer and employee to better identify and document disabilities, and efforts made to accommodate them, will become increasingly important to an employer's legal health.