May 12, 2011

The Equal Employment Opportunity Commission (“EEOC”) published final regulations implementing the Americans with Disabilities Act Amendments Act (“ADAAA”) on March 25, 2011.  The ADAAA became effective on January 1, 2009, but does not apply retroactively.  The full text of the ADAAA is available online, as is the full text of the new regulations.  The gist of the Act and the new regulations is that the definition of disability is to be construed in favor of broad coverage, and it should not require an extensive analysis.  The focus should be on whether the individual can perform the essential functions of the job with or without reasonable accommodations, not on whether the individual has a disability.

The basic definition of disability remains the same.  “Disability” means a physical or mental impairment that substantially limits one or more of the major life activities, a record of an impairment, or having been regarded as having an impairment.  The major changes included in the ADAAA and the new regulations are:

1. “Regarded As” Disabled.  You may recall that the definition of disability has always included not only individuals who are actually disabled, but also those who employers regard as having a disability (and those who have a record of having a disability).  Prior to the ADAAA, in order to meet the “regarded as” prong of the definition of disability, employees had to show that the impairment the employer regarded them as having would substantially limit a major life activity if they in fact had that impairment (or that the mistreatment they suffered as a result of a condition (e.g., a cosmetic disfigurement) was substantially limiting, although it did not affect their ability to perform major life activities).  The ADAAA eliminated this requirement.  The new regulations make clear that as long as the impairment the employer regards the employee as having is more than “minor” (which is not defined) and “transitory” (which is defined as lasting six months or less), if the employer takes an adverse employment action against the employee because of the impairment, then the employee satisfies the regarded-as prong of the definition of disability.  However, employees who are regarded-as disabled still must be qualified to perform the essential functions of the job they hold or desire, and they are not entitled to reasonable accommodations if they only have a “regarded-as” disability (only employees who have an actual disability or a record of a disability are entitled to reasonable accommodations).

2. Major Life Activities.  Prior to the ADAAA, the Supreme Court had held that only those activities that “of central importance to most people’s daily lives” qualified as “major life activities.”  Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002).  The ADAAA expressly rejected that standard, and the new regulations provide the following definition:

Major life activities include, but are not limited to:

(i) 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; and

(ii) The operation of a major bodily function, including functions of the immune system, special sense organs and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. The operation of a major bodily function includes the operation of an individual organ within a body system.

The underlined language is new (did not appear in the old EEOC regulations).

3. Substantially Limits.  Prior to the ADAAA, the Supreme Court had held that in order for an impairment to be considered “substantially limiting,” it had to “prevent or severely restrict” the individual from performing a major life activity.  Toyota, 534 U.S. at 198.  The ADAAA expressly rejected that standard.  The new regulations do not provide a definition of “substantially limits,” per se, but instead list nine “rules of construction” to be applied in determining whether an individual’s impairment is substantially limiting.  They are summarized below:

a. The term ‘‘substantially limits’’ shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA.  ‘‘Substantially limits’’ is not meant to be a demanding standard.

b. An impairment is a disability within the meaning of this section if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.  An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.

c. The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual’s impairment substantially limits a major life activity.

d. The term ‘‘substantially limits’’ shall be interpreted and applied to require a degree of functional limitation that is lower than the standard for ‘‘substantially limits’’ applied prior to the ADAAA.

e. The comparison of an individual’s performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical analysis.

f. The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures. However, the ameliorative effects of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity.

g. An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

h. An impairment that substantially limits one major life activity need not substantially limit other major life activities in order to be considered a substantially limiting impairment.

i. The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting.

4. Impairments that “Virtually Always” Constitute a Disability.  For the first time, the EEOC has provided in the new regulations a lengthy list of conditions that “virtually always” constitute disabilities.  Most of these are obvious, but some, in the past, would have been held by courts not to constitute disabilities, either because the condition was well controlled with medication, or because the condition did not presently affect the individual in tasks central to most people’s daily lives.  If an applicant or employee has a condition on the following list, you should tread carefully in taking any action against them because of the condition, and be prepared to engage in an interactive process discussing reasonable accommodations:

a. Deafness
b. Blindness
c. Intellectual disability (formerly termed mental retardation)
d. Partially or completely missing limbs
e. Mobility impairments requiring the use of a wheelchair
f. Autism
g. Cancer
h. Cerebral palsy
i. Diabetes
j. Epilepsy
k. Human Immunodeficiency Virus (HIV)
l. Multiple sclerosis
m. Muscular dystrophy
n. Major depressive disorder
o. Bipolar disorder
p. Post-traumatic stress disorder
q. Obsessive compulsive disorder
r. Schizophrenia

For additional information on compliance with the ADAAA please visit the EEOC website or contact us with any questions.


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