EEOC Releases Final Regulations on ADAAA

On March 24, 2011, the Equal Employment Opportunity Commission (EEOC) issued Final Regulations to implement the ADA Amendments Act of 2008 (ADAAA). Like the law they implement, the Regulations simplify and expand the determination of who has a “disability” and will make it easier for claimants to establish that they are protected by the Americans with Disabilities Act (ADA).

The  ADAAA was enacted on September 25, 2008, and became effective on January 1, 2009. The ADAAA’s purpose is “to reinstate a broad scope of protection” by expanding the definition of the term “disability.” In enacting the ADAAA, Congress found that persons with many types of impairments – including epilepsy, diabetes, HIV infection, cancer, multiple sclerosis, intellectual disabilities, major depression, and bipolar disorder – have been unable to bring ADA claims because they were found not to meet the ADA’s definition of “disability.” Congress explicitly rejected certain Supreme Court interpretations of the term “disability,” finding that those decisions inappropriately narrowed the definition of disability.

The ADAAA directed the EEOC to amend its Regulations to reflect the changes made by the ADAAA. The EEOC’s Regulations clarify the following provisions of the law:

Disability. The Regulations retain the basic three-part definition of the term “disability”, as (i) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (ii) a record of such an impairment; or (iii) being regarded as having such an impairment.

Impairment. The Regulations define “physical or mental impairment” as (1) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or (2) any mental or psychological disorder, such as an intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

With regard to pregnancy-related conditions, the Regulations clarify that although pregnancy itself is not an impairment, a pregnancy-related impairment that substantially limits a major life activity is a disability under the first prong of the definition. Alternatively, a pregnancy-related impairment may constitute a “record of” a substantially limiting impairment, or may be covered under the “regarded as” prong if it is the basis for a prohibited employment action and is not “transitory and minor.”

Major Life Activities. The Regulations include a non-exhaustive list of “major life activities” including, (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.

Notably, the standard established in the U.S. Supreme Court’s decision Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002), for determining whether an activity qualifies as a major life activity – that it be of “central importance to most people’s daily lives” – no longer applies. In determining other examples of major life activities, the term “major” shall not be interpreted strictly so as to create a demanding standard for disability.

Substantially Limits. The Regulations make clear that some impairments, given their inherent nature, will virtually always be found to impose a substantial limitation on a major life activity. For these impairments, the individualized assessment should be particularly simple and straightforward. The Regulations include examples of impairments that should easily be found to substantially limit a major life activity, including: deafness substantially limits hearing; blindness substantially limits seeing; an intellectual disability substantially limits brain function; partially or completely missing limbs or mobility impairments requiring the use of a wheelchair substantially limit musculoskeletal function; autism substantially limits brain function; cancer substantially limits normal cell growth; cerebral palsy substantially limits brain function; diabetes substantially limits endocrine function; epilepsy substantially limits neurological function; Human Immunodeficiency Virus (HIV) infection substantially limits immune function; multiple sclerosis substantially limits neurological function; muscular dystrophy substantially limits neurological function; and major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia substantially limit brain function.

Comparison to “Most People.” The Regulations state that in determining whether an individual has a substantially limiting impairment, the individual’s ability to perform a major life activity can be compared to that of “most people in the general population.”

Duration of an Impairment’s Limitations in Assessing “Substantially Limits.” The Commission specifically declined to provide for a six-month durational minimum for showing disability. Additionally, the Commission did not set a minimum duration that an impairment’s effects must last in order to be deemed substantially limiting. Impairments that last only a short period of time may be covered if sufficiently severe.

Mitigating Measures. Mitigating measures, other than ordinary eyeglasses or contact lenses, cannot be considered in determining whether an individual has a disability. Mitigating measures include medication, medical equipment and devices, prosthetic limbs, low vision devices ( e.g., devices that magnify a visual image), hearing aids, mobility devices, oxygen therapy equipment, use of assistive technology, reasonable accommodations, and learned behavioral or adaptive neurological modifications. In the Final Regulations, the Commission has added psychotherapy, behavioral therapy, and physical therapy to the list of “mitigation measures” that cannot be considered, and notes further that its list is not exhaustive.

Impairments That are Episodic or in Remission. 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 with symptoms or effects that are episodic rather than present all the time can be a disability even if the symptoms or effects would substantially limit a major life activity only when the impairment is active. Examples of impairments that may be episodic, include epilepsy, hypertension, asthma, diabetes, major depressive disorder, bipolar disorder, and schizophrenia. An impairment such as cancer that is in remission but may possibly return in a substantially limiting form will also be a disability.

Condition, Manner, or Duration. The Commission inserted the terms “condition, manner, or duration” as concepts that may be relevant in certain cases to show how an individual is substantially limited and included language to illustrate what these terms mean. For example, “condition, manner, or duration” might mean the difficulty or effort required to perform a major life activity, pain experienced when performing a major life activity, the length of time a major life activity can be performed, or the way that an impairment affects the operation of a major bodily function.

Substantially Limited in Working. Since no other major life activity was singled out in the Regulations for elaboration, the Final Regulations do not mention the major life activity of working other than by its inclusion in the list of major life activities. The Regulations address how to analyze the “major life activity of working” only in the appendix, where the Commission retained the original analysis of whether an individual has difficulty performing either a “class or broad range of jobs.”

Record of a Disability. Examples of “record of” disabilities are included in the appendix to the Regulations. For example, the “record of” provision would protect an individual who was treated for cancer ten years ago but who is now deemed by a doctor to be free of cancer, from discrimination based on that prior medical history.

Regarded As. The Final Regulations provide further clarification and explanation of the scope of “regarded as” coverage. Even if coverage is established under the “regarded as” prong, the individual must still establish the other elements of the claim (e.g., that he or she is qualified) and the employer may raise any available defenses. In other words, a finding of “regarded as” coverage is not itself a finding of liability. Notably, an employer may show that an impairment is “transitory and minor” as a defense to “regarded as” coverage.

The Commission added a provision providing that a covered entity is not required to provide a reasonable accommodation to an individual who meets the definition of disability solely under the “regarded as” prong.

Evidence of Disability. The Regulations do not include rules on what type of information an employer may request about the nature of an impairment (e.g., during the interactive process in response to a request for reasonable accommodation). The EEOC noted that it has stated repeatedly in policy documents and technical assistance publications that individuals requesting accommodation must provide certain supporting medical information if the employer requests it, and that the employer is permitted to do so if the disability and/or need for accommodation are not obvious or already known. The ADA Amendments Act does not alter this requirement.

Discrimination Claims By An Individual Without A Disability. The Regulations clarify that there is no basis for a claim that an individual without a disability was subject to discrimination because of his lack of disability, including a claim that an individual with a disability was granted an accommodation that was denied to an individual without a disability.

The EEOC has issued fact sheets that explain the ADAAA, including Questions and Answers on the Final Rule Implementing the ADA Amendments Act of 2008 and Questions and Answers for Small Businesses: The Final Rule Implementing the ADA Amendments Act of 2008.

Article courtesy of Worklaw Network firm Shawe Rosenthal.