EEOC Issues Final Regulations Implementing the ADA Amendments Act
On March 25, 2011, the Equal Employment Opportunity Commission (EEOC) issued its final regulations implementing the ADA Amendments Act (ADAAA) of 2008. These regulations, like the Americans with Disabilities Act (ADA) itself, apply to employers with 15 or more employees.
The purpose of the regulations, according to an EEOC press release, is to “simplify the determination of who has a ‘disability’ and make it easier for people to establish that they are protected by the Americans with Disabilities Act”.
The Definition of Disability Has Not Changed but Its Interpretation Has
The definition of “disability” under the ADAAA and its regulations has not changed. A disability is:
- a physical or mental impairment that substantially limits one or more major life activities (sometimes referred to in the regulations as an “actual disability”), or
- a record of a physical or mental impairment that substantially limited a major life activity (“record of”), or
- when an employer takes an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory and minor (“regarded as”).
While the final regulations do not list any impairment as a per se or automatic disability, there is a strong presumption that certain impairments will constitute an actual disability. These impairments include:
deafness, blindness, intellectual disability (formerly known as mental retardation), partially or completely missing limbs, mobility impairments requiring use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia.
The Q&As put out by the EEOC clarify that a short-term, episodic condition, or a condition that is in remission, meets the definition of disability if it would substantially limit a major life activity when 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 that may possibly return in a substantially limiting form will also be a disability under the ADAAA and the regulations.
A Physical or Mental Impairment
A “physical or mental impairment” is essentially defined the same way it was in the initial ADA regulations. A “physical or mental impairment” is any physiological, mental, or psychological disorder or condition; emotional or mental illness; cosmetic disfigurement; organic brain syndrome; specific learning disabilities; or anatomical loss affecting one or more body systems.
To be disabled, the physical or mental impairment must “substantially limit” an individual’s ability to perform a major life activity. The new regulations direct that whether an employee or applicant is “substantially limited,” should be compared to “most people in the general population,” and depends upon
- the difficulty, effort, or time 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;
- the way an impairment affects the operation of a major bodily function;
- whether the individual would be substantially limited in performing a major life activity without any mitigating such as mediations or a hearing aid (but excepting the use of ordinary eyeglasses or contact lenses); and/or
- the extent to which an impairment limits a major life activity, rather than on what outcomes an individual can achieve with mitigation.
A non-exhaustive list of mitigating measures includes:
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, learned behavioral or adaptive neurological modifications, psychotherapy, behavioral therapy, and physical therapy.
Note that an employer may not require an employee or applicant to use a mitigating measure, but an individual’s failure to do so may affect whether he or she is qualified for a particular job.
Major Life Activity
To be considered disabled, the physical or mental impairment must substantially limit an individual in performing a “major life activity.” A non-exhaustive list of major life activities includes:
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.
The regulations also state that major life activities include the operation of major bodily functions, including
functions of 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. The regulations also state that major bodily functions include the operation of an individual organ within a body system (e.g., the operation of the kidney, liver, or pancreas).
Among other reasons, because the regulations include major bodily functions as major life activities, more individuals will qualify as disabled.
“Past History” or “Record Of” Being Disabled
The ADAAA also protects a person with a history, or “record of” a substantially limiting impairment, even if the individual is no longer disabled. For example, a person with a history of cancer that is now in remission may be covered to protect the individual from being denied employment based on the employer’s belief that the employee may need an accommodation in the future or may miss periods of work.
“Regarded As” Being Disabled
Under the “regarded as” prong defining “disability,” an employer is prohibited from taking an action prohibited by the ADA based on a belief that an individual is disabled. Here, the regulations seek to protect an individual who does not have an impairment from an employer who acts based on myths, fears, or stereotypes about a person’s medical condition. However, an impairment that is both transitory and minor cannot form the basis for a regarded-as claim. (A transitory condition is one that lasts or is expected to last less than six months).
Finally, although it may go without saying, the regulations clarify that an individual who is “regarded as” disabled by the employer is not entitled to reasonable accommodation.
- Review policies that address disability, leaves of absence, and reasonable accommodations to ensure they comply with the ADA and ADAAA.
- Be prepared to offer more “reasonable accommodations” since more individuals will be considered disabled under the Act.
- As always, document: the discussions you have with employees regarding their impairments, that you engaged in the interactive process, and that you offered a reasonable accommodation (when called for).
- Ensure your job descriptions are up-to-date and identify the position’s essential functions.
Access Additional Information About the ADAAA and the Final Regulations
The Kurker Law Group LLC is a litigation and employment law firm located in Concord, Massachusetts. Having spent years at a large law firm before founding KLG, Allyson Kurker has worked with a variety of clients, from Fortune 500 companies to family-owned businesses, and many in between. While Allyson’s clients are varied, her approach is consistent: understand the client’s business objectives; counsel clients so they can prevent employment disputes; find early resolutions when possible; litigate tenaciously when necessary. Allyson Kurker has been selected as an “Up and Coming Lawyer” by Massachusetts Lawyers Weekly, in conjunction with the Massachusetts Bar Association. This award is presented annually to 20 “lawyers who have been members of the bar for ten years or less, but who have already distinguished themselves in some way and appear poised for even greater accomplishments.” In November 2011, Allyson was honored as a “Rising Star” in employment law by Super Lawyers, a service that rates outstanding lawyers from more than 70 practice areas. No more than 2.5 percent of the lawyers in the state are named to this annual list.