On March, 24, 2011, the United States Equal Employment Opportunity Commission (“EEOC”) issued its Final Regulations (“Regulations”) to the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”). The new Regulations tend to simplify the determination of who has a disability and in accordance with the ADAAA’s broader definition of “disability” make it easier for employees to establish that they are protected under the ADA. Under the ADAAA Disability is still defined as:
• a physical or mental impairment that substantially limits one or more major life activities (“actual disability”);
• a record or past history of such an impairment (“record of disability”); or
• being regarded as having a disability (“regarded as disabled”).
But the ADAAA and the Regulations state that that the term disability should be interpreted in favor of broad coverage of individuals. In addition, there are some key provisions of the Regulations that will likely lead to an increased number of disability claims stemming from a broad range of employees.
Expanded definitions of individuals with an "Actual Disability" or a "Record of"
There are three key ways that the new Regulations will afford coverage to more individuals under the first two prongs of the ADA. They are as follows:
1. Lowering the threshold for determining if an employee is substantially limited in a major life activity.
- The Regulations specifically state that demonstrating that an employee is "substantially limited" should not be a demanding standard;
- No scientific, medical, or statistical analysis required for an employer to compare the individual with other members of the general population;
- Positive effects of mitigating measures, such as prosthetics, implantable hearing devices, mobility devices, etc. are ignored; and
- An individual who is, despite a physical or medical condition, able to perform at a high level, may still be disabled as the focus is not on outcome they can achieve, but rather on whether the disability substantially limits a major life activity.
2. Another major change in the Regulations is that they reverse prior case law and specifically state that temporary impairments are protected: “The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting” and within the protections of the ADA. In addition, episodic conditions are now covered, even if in remission, if the impairment “would substantially limit” a major life activity in an active state. Further, the Regulations provide a non exhaustive list of episodic impairments which are statutorily covered:
- multiple sclerosis, and
- psychiatric disabilities such as bipolar disorder and post-traumatic stress disorder,
3. Per Se Disabilities -- Although the EEOC encourages employers to conduct an individualized assessment when determining if an individual is disabled, the Regulations also list various conditions that “in virtually all cases, result in a determination” of disability. The list includes:
- multiple sclerosis,
- partially or completely missing limbs,
- serious mental disorders such as bipolar disorder,
- obsessive compulsive disorder, and
- post-traumatic stress disorder.
Expanding “regarded as” prong
The ADAAA also expressly increased the coverage for individuals who are “regarded as disabled”, prohibiting discrimination based on an employer’s alleged perception of an impairment, even if that impairment is not perceived as an impairment that substantially limits a major life activity. An employee who requires an accommodation or who was denied an accommodation can not proceed under a “regarded as” standard. Rather, an employee who is arguing an employer should have made an accommodation, must be able to prove either that they have an actual disability or have a record of such disability. Employees with minor restrictions could be protected and could pursue an ADA claim for being “regarded as” disabled.
Employers can take solace in the fact that they are not required to provide reasonable accommodations to those “regarded as” having a disability, or for those disabilities which are transitory and minor. The ADAAA defines “transitory” as lasting less than six months. However, there is no definition in either the ADAAA or the Regulations as to what is meant by a “minor” disability.
The Regulations and the ADAAA amendments they implement appear to make it easier for employees to qualify as disabled under the ADA, therefore businesses should act strategically to mitigate their ADA exposure. Focus must shift from debating whether an individual is disabled and more on the possible accommodations for disabled employee. Because of the potentially significant liability exposure, employers will generally want to consult with qualified legal counsel when confronted with any employee disability issues. In addition, employers will want to seek assistance in reviewing and updating their organization’s employment practices and/or employee policies in response to the EEOC’s Regulations.
(This entry was in large part researched and written by my colleague Todd A. Palo, Esq., to whom I offer my thanks).