On Friday, March 25, 2011, the Equal Employment Opportunity Commission (“EEOC”) published final regulations interpreting the Americans with Disabilities Act (“ADA”), as amended by the Americans with Disabilities Act Amendments Act (“ADAAA”). The final regulations become effective on May 24, 2011.
The final regulations don’t change everything under the ADA. For example, the definition of “disability” and the standards for reasonable accommodation haven’t changed as a result of the new regulations…though the number of individuals who will qualify as having a disability and as being entitled to reasonable accommodation under the new regulations almost certainly has.
What the final regulations do, instead, is to “clarify” what it means to be substantially limited in a major life activity. They also provide that an impairment can constitute a disability even if it does not prevent, or even significantly or severely restrict, the individual from performing a major life activity. And they change in part the practical definition of being “regarded as” having a disability.
So what does it mean now for an individual to be substantially limited?
The final regulations clarify that the following rules should be used when determining whether a condition is substantially limited:
- The term "substantially limits" must be interpreted to cover more, rather than fewer, individuals. And the determination should not require an extensive analysis. In other words, when in doubt, an individual is to be deemed “substantially limited” by his or her impairment.
- “Major life activities” now is defined to cover “major bodily functions,” in addition to caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working. “Major bodily functions” is defined to include the immune system, special sense organs and skin, normal cell growth, digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions.
- An individual who claims that his or her impairment substantially limits a major life activity does not have to prove that the limitation affects his or her ability to perform activities of central importance to daily life. For example, an individual with a 20-pound lifting restriction of long duration is substantially limited in lifting regardless of whether he can show that he is unable to perform activities of daily living requiring lifting.
- The impairment must "substantially limit" only one major life activity to qualify as a disability. For example, an individual whose endocrine system is substantially limited due to diabetes need not also show that he or she is substantially limited in eating or any other major life activity.
- Mitigating measures (other than glasses and contact lenses) may not be considered when determining whether an individual is substantially limited. However, whether a mitigating measure “works,” that is, helps or does not help ease the effects of the impairment, may be relevant in deciding non-coverage issues, such as whether the individual is qualified for a position, needs a reasonable accommodation, or poses a direct threat.
- Impairments need not last any minimal length of time to qualify as disabilities. For example, a condition may substantially limit a major life activity even if it lasts, or is expected to last, less than six months.
Employers have not been stripped of all rights when determining whether a condition is substantially limiting. Under the final regulations, employers are permitted to take into consideration the conditions under which the individual performs the major life activity, the manner in which the individual performs the major life activity, and/or the duration of time it takes the individual to perform the major life activity. Thus, if when the individual performs the activity it results in a minimal amount of pain, the employer may be able to argue that the individual is not "substantially" limited. But such an argument will be available only in extraordinary cases because, as noted above, one of the rules of construction under these regulations is that the threshold issue of whether an impairment "substantially limits" a major life activity should not require extensive analysis.
What does it mean now to be “regarded as” having a disability?
An individual alleging “regarded as” discrimination need no longer prove that he or she is perceived as having a “disability,” that is, a physical or mental impairment that substantially limits a major life activity. Instead, that person need show only that the employer discriminated against him or her based on a belief that he or she had an impairment. However, if the employer can show that the impairment was just “transitory [lasting or likely to last six months or less] and minor,” then the individual cannot be found to have been “regarded as” having a disability. Once again, the six month “minimum” applicable to “regarded as” claims does not apply to claims of actual disability discrimination or discrimination based upon a record of disability.
Many of the lists of examples previously provided in the proposed regulations have been moved to the appendix of the final regulations or removed entirely. For example, the proposed regulations contained three lists of examples of impairments which: (i) consistently meet the definition of a disability; (ii) would be disabling for some individuals but not others; and (iii) would not usually qualify as a disability. The EEOC has deleted the latter two lists and limited the first list to conditions which will, in virtually all cases, qualify as disabilities. The change was prompted by EEOC's desire to make sure that all assessments are conducted on an individualized basis.
The EEOC's final regulations confirm that the agency intends to apply the definition of disability loosely and in favor of finding people to be “individuals with disabilities” for purposes of coverage by the ADAAA. The practical effect of the new law and these regulations is that employers will find themselves engaging in substantially more "interactive dialogues" to determine whether a reasonable accommodation of an applicant’s or employee's disability can be provided. From a litigation standpoint, employers will refocus challenges to a disability discrimination claim on whether the accommodation it offered was reasonable, rather than on whether the applicant or employee qualifies for coverage as having a disability.
- Employers will want to review their policies and procedures related to disability and accommodation to ensure that they account for the broader definition of disability.
- Employers should consider training supervisors about the broader standard of disability.
A copy of the regulations can be found here.
In addition, the EEOC released a "user-friendly" question and answer guide on the ADA, as amended, and a small business guide. The question and answer guide can be found here. The small business guide can be found here.