The Final ADAAA Regulations Are Out - Now What?April 21, 2011
On March 25, 2011, the Equal Employment Opportunity Commission (EEOC) published final regulations implementing the Americans with Disabilities Act Amendments Act (the ADAAA). The final regulations, which will take effect on May 24, 2011, reflect a multi-year effort by lawmakers to widen the protections of the Americans with Disabilities Act (ADA) so that they are once again consistent with the expectations outlined by the original drafters of the ADA back in 1990. The following is a summary of the practical implications of the changes made by the ADAAA and the recently issued final regulations.
The Definition of Disability To Be Construed Broadly.
The ADAAA and the final regulations retain the basic definition of "disability" as an impairment that substantially limits one or more major life activities (an "actual disability"), a record or past history of such impairment (a "record of"), or being regarded as having such impairment ("regarded as"). However, the ADAAA and the final regulations have significantly broadened how the definition is to be interpreted. The following rules of construction are to be used when determining whether an individual is "substantially limited" in performing a major life activity:
- "Substantially limits" is to be construed broadly, to the maximum extent allowable under the law.
- "Substantially limits" does not need to prevent or severely or significantly restrict a major life activity (a standard previously advanced by courts); rather, an impairment is a disability if it substantially limits the ability of an individual to perform major life activities as compared to "most people" in the general population.
- The determination of whether an impairment substantially limits a major life activity requires individualized assessment; however, such analysis need not and, in fact, should not be extensive.
- With one exception (ordinary eyeglasses or contact lenses), the determination of whether an impairment "substantially limits" a major life activity should be made without regard to the ameliorative effects of mitigating measures, such as medication and assistive devices.
- Impairment that is episodic or in remission meets the definition of disability if it would substantially limit a major life activity when active.
As it relates to the term "major life activity," the term has been further expanded to include "major bodily functions" such as functions of the immune system, normal cell growth, and brain, neurological and endocrine functions. In addition, the final regulations provide that the term "major" is not to be construed strictly to mean of "central importance to daily life."
Certain Impairments, In Virtually All Cases, Will Be Considered Disabilities.
To make the disability analysis even easier, the EEOC has included a predictable assessment section in the implementing regulations, which includes a list of impairments that, "in virtually all cases," will be considered disabilities. Such impairments include deafness, blindness, intellectual disability, missing limbs, autism, cerebral palsy, cancer, diabetes, HIV infection, multiple sclerosis, muscular dystrophy, major depression disorder, bipolar disorder, posttraumatic stress disorder, obsessive/compulsive disorder, and schizophrenia. While the final regulations clearly state that this list of impairments does not amount to a per se list, the EEOC has candidly included in the regulations that the individualized assessment for the listed disabilities should be particularly simple and straightforward.
The final regulations do not include a list of impairments that will not be considered disabilities. The interpretative appendix to the regulations, however, states that the definition of impairment does not include physical characteristics such as eye color, hair color, left-handedness, height, or weight or muscle tone if it is within "normal range" and not a result of a physiological disorder. The EEOC goes on to state that other conditions, such as pregnancy and age, are not in and of themselves impairments; however, such conditions may be related to or the cause of impairments that may constitute disabilities under the ADA.
Episodic Impairments or Impairments in Remission.
The ADAAA and the final regulations specifically state that an impairment that is episodic or in remission meets the definition of disability if it would substantially limit a major life activity when active. This means that chronic impairments and symptoms or effects that are episodic rather than present all the time can be a disability even if the symptoms would only substantially limit a major life activity when the impairment is active.
The appendix to the new regulations provides examples of such impairments that may be episodic, including epilepsy, hypertension, asthma, diabetes, major depression disorder, bipolar disorder, and schizophrenia. An impairment, such as cancer, that is in remission but that may possibly return in a substantially limiting form will also be a disability under the ADA.
Under the new rules of construction introduced by the revised law, an employer may not consider mitigating measures when undertaking the disability analysis, except for ordinary eyeglasses or contact lenses. In other words, if a mitigating measure eliminates or reduces the symptoms or impact of the impairment, for example, insulin injections for a diabetic employee, that fact cannot be used in determining if a person meets the definition of disability. Instead, the determination of disability must focus on whether the individual would be substantially limited in performing a major life activity without mitigating measures.
Note, however, the revised law's prohibition on assessing the positive effects of mitigating measure applies only to the determination of whether an individual meets the definition of disability. All other determinations, including the need for a reasonable accommodation and whether an individual poses a direct threat, can take into account both the positive and negative effects of mitigating measures.
Regarded As Disabled.
Under the ADAAA and the final regulations, an employer "regards" an individual as having a disability if it takes an action prohibited by the law (e.g., failure to hire, termination, or demotion) based on an individual's impairment or on an impairment the employer believes the individual has, unless the impairment is transitory and minor (see discussion below). This new formulation of "regarded as" having a disability is different from the original ADA formulation, which requires an individual seeking coverage under this part of the definition to show (1) that the employer believed the individual had an impairment (or perceived impairment), and (2) such impairment substantially limited a major life activity.
The revised law provides employers with a defense to a charge of discrimination based on the "regarded as" prong of the definition of disability if the impairment (or perceived impairment) in question is "transitory" (i.e., will last less than six months) and "minor." It will be the employer's evidentiary burden to prove that the actual or perceived impairment is, in fact, transitory and minor. This "transitory and minor" defense does not apply to the first two prongs of the disability definition and the EEOC clarifies in the new regulations that for purposes of an actual disability or a record of a disability, the effects of such impairment can last for fewer than six months and still be substantially limiting.
It is of note that an individual that falls within the definition of disability only under the regarded as prong is not entitled to an accommodation. Only individuals that qualify under the actual disability prong or the record of disability prong are entitled to reasonable accommodations.
What's Remained Unchanged?
A lot. The recent revisions to the law focus primarily on the definition of disability. The standards for determining whether discrimination occurred and whether an accommodation is reasonable remain the same. Under the federal law, employees must be able to perform the essential functions of their jobs, with or without reasonable accommodations, and a reasonable accommodation is one that does not create an undue burden for the employer. In addition, although the ADAAA and the implementing regulations significantly overhaul the disability analysis, the final regulations preserve an employer's right to request medical information to establish that an impairment is substantially limiting.
What Should Employers Do?
Adjust your analysis when evaluating disability matters. In light of the new regulations, most all impairments will amount to disabilities under the law, and an employer should no longer focus on whether a disability exists - it likely does. The focus should be shifted to whether the disability needs to be reasonably accommodated and/or whether an employment action is being administered fairly. As always, document the interactive process, and note when employees are being provided with accommodations.
Train, train, train, and then train some more. The interpretation of "disability" under the revised law does not reflect the general population's perception of the term. Accordingly, there is a significant risk that managers and decision-makers in your workforce will not recognize a disability accommodation request or will inadvertently consider a disability when making an employment decision. Management personnel must be trained to recognize such requests and to avoid making risky employment decisions.
For assistance with any of these tasks or to obtain additional information about the new regulations, contact Margaret R. Kurlinski (firstname.lastname@example.org or 414-287-9539) or any other member of Godfrey and Kahn's Labor, Employment & Immigration Practice Group.