Final ADAAA Regulations in Effect
On March 25, 2011, the Equal Employment Opportunity Commission ("EEOC") issued final regulations and interpretive guidance to implement the ADA Amendments Act of 2008 ("ADAAA"). Those final regulations became effective May 24, 2011.
Congress passed the ADAAA with the stated intention of broadening employee protections under the Americans with Disabilities Act ("ADA"). The ADAAA redefined key ADA terms and overturned important court decisions in order to achieve those broader protections. The words used to define "disability" have stayed the same: a physical or mental impairment that (1) "substantially limits" one or more "major life activities," (2) a record of such an impairment, or (3) being regarded as having such an impairment. But under the ADAAA and the EEOC's final regulations, those words must now be interpreted more broadly in favor of potentially disabled employees.
The following are some of the highlights from the final regulations:
- Coverage – The regulations emphasize that the definition of disability must be "construed in favor of broad coverage to the maximum extent permitted by the terms of the ADA as amended." In fact, in the EEOC's view, the determination of "whether an individual has a disability should not demand extensive analysis."
- "Major Life Activities" – Several new activities are added to the list of "major life activities," including "interacting with others." In addition, the "operation of major bodily functions" is added as a "major life activity" and the regulations list nearly every physiological function as a "major bodily function." This expanded scope of major life activities means there are now more life activities in which employees may be substantially limited and, therefore, more employees considered disabled under the law.
- "Substantially Limits" – The regulations do not define "substantially limits" but rather provide the following nine "rules of construction" which make it much easier for employees to prove that an impairment substantially limits a major life activity:
- "Substantially limits" must be construed broadly in favor of coverage.
- For purposes of determining whether a person has an actual disability or has a record of a disability, the effects of an impairment lasting or expected to last fewer than six months can be substantially limiting. Despite pleas from industry groups, the EEOC declined to adopt a bright-line test that would have excluded impairments of short duration (such as broken bones) from the definition of "disability."
- The old standard which equated "substantially limits" with "severely restricts" is abandoned; a person need only be limited in the ability to perform a major life activity as compared to most people in the general population.
- The "primary object of attention" in ADA cases is whether the employer has complied with its obligations, including the obligation to engage in the "interactive process" to identify possible accommodations, rather than whether an impairment is substantially limiting.
- The question of whether an impairment is substantially limiting requires an "individualized assessment." The final regulations, however, list certain impairments in which an assessment will result in a finding of a disability in "virtually all cases," such as deafness, blindness, intellectual disability (formerly mental retardation), missing limbs, autism, cerebral palsy, cancer, diabetes, HIV infection, multiple sclerosis, muscular dystrophy, major depressive order, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.
- 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. Again, the EEOC is sending a signal to employers that determining whether a person is disabled should not require extensive analysis.
- With the exception of eyeglasses or contact lenses, the determination of whether an impairment is substantially limiting is made "without regard to the ameliorative effects of mitigating measures." Thus, if medication controls a particular impairment, the effectiveness of the medication is ignored in determining whether the person has a substantially limiting impairment. Conversely, if the medication has negative side effects, those effects are considered in determining whether the individual is substantially limited.
- An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
- An impairment need only substantially limit one major life activity. For example, a person with a 20-pound lifting restriction lasting for several months, according to the EEOC's Interpretive Guidance, is disabled even if the limitation does not impact any other activities of daily living.
- "Regarded As" Claims – The final regulations also broaden the scope of the "regarded as" prong of the disability definition. In the past, to be successful on a "regarded as" claim the employee had to prove that the employer took adverse employment action against the employee based on the employer's perception that the employee was disabled (i.e., substantially limited in a major life activity). Under the final regulations, the "regarded as" prong simply requires a showing that the employer took an adverse action because of a perceived physical or mental impairment. In other words, the concepts of "substantially limits" and "major life activity" are now irrelevant in "regarded as" claims, which make those claims easier to sustain for a plaintiff. The EEOC did, however, include an affirmative defense for employers – impairments that are objectively both transitory (lasting six months or less) and minor will not support a "regarded as" claim.
The EEOC has reported an increase in disability discrimination filings following the adoption of the ADAAA and that increase is expected to continue, especially in light of the final regulations. Employers should consider taking the following action:
- Impress upon human resources staff and supervisors that they need to be more mindful than ever of the company's duty to reasonably accommodate employees with physical or mental impairments. They need to be able to recognize when the duty to accommodate arises and how to go about accomplishing the process of accommodation if appropriate. Any request or set of facts that should reasonably put the employer on notice of a potential disability will likely be enough to trigger the assessment for a disability and the interactive accommodation process.
- Document the "interactive process" between the company and the employee to identify possible accommodations.
- Do not assume that a physical or mental impairment is too minor to be considered a disability.
- Review job descriptions to ensure that they include all essential job functions.
- Have a strategy in place for dealing with requests for accommodation; do not leave disability questions to the whims of individual supervisors operating without a coherent policy.
- When in doubt, either assume there is a disability and proceed to the interactive accommodation process, or consult legal counsel on the need to accommodate.
If you have any questions about the ADAAA or the EEOC's final regulations, please contact any member of Varnum's Labor and Employment Relations Team.