New regulations broaden the definition of a disability
Posted March 25, 2011
The EEOC’s final regulations implementing the ADA Amendments Act (ADAAA) were published in the March 25, 2011 Federal Register. They become effective May 24, 2011. The major focus of the regulations is the definition of a disability.
The Act and the new regulations will make it easier for individuals to claim protection under the law, as the definition of a disability is broadened and easier to meet. This will result in the need for employers to provide more accommodations, and will require employers to shift their focus from whether an individual has a disability to whether discrimination occurred.
The law retained the basic definition of disability:
- Impairments that substantially limit one or more major life activities,
- A record of such an impairment, or
- Being regarded as having such an impairment.
The regulations (Appendix), however, provide an updated interpretation, attempting to reflect Congressional and EEOC goals. An individual has a disability if he or she:
- Has a physical or mental impairment that substantially limits one or more of that person’s major life activities (the “actual disability” prong);
- Has a record of such an impairment (the “record of” prong); or
- Is regarded by the covered entity as an individual with a disability; the individual has been subjected to a prohibited action because of an actual or perceived impairment that is not both transitory and minor (the “regarded as” prong).
Under the first two prongs, an individual must have or have had a disability. Under the third prong, an individual need not have a disability; the impairment need not substantially limit or be perceived to substantially limit, a major life activity.
Some of the other major changes the law and the regulations made include the following:
- Expansion of the list of major life activities to include major bodily functions. These lists are not exhaustive.
- The use of mitigating measures (other than ordinary eyeglasses or contact lenses) cannot be considered in assessing whether an individual has a disability.
- An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
- The definition of “regarded as” does not require a showing that an employer perceived the individual to be substantially limited in a major life activity.
- Employment actions based on an impairment include actions based on symptoms of, or mitigating measures used for, an impairment.
- Individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation.
- Qualification standards, employment tests, or other selection criteria based on an individual’s uncorrected vision are not to be used unless shown to be job-related and consistent with business necessity.
- An individualized assessment as to whether an impairment is substantially limiting needs to be performed.
The effect of the changes
As a result of these changes, employers should shift their focus from whether an employee has a disability to the following:
- Whether discrimination occurred because of a disability,
- Whether an individual was qualified for a job, and
- Whether a reasonable accommodation was called for.
With the inclusion of major bodily functions in major life activities, as well as the body systems in the definition of impairments, it should be easier for employers to determine that an individual has a disability, and many more should.
When looking at whether or not an impairment substantially limits a major life activity, employers will need to analyze the situation using nine principles:
- Apply the term (“substantially limits”) broadly. Do not spend much effort on it.
- Significant or severe restriction is not required. However, not every impairment is substantially limiting.
- Substantial limitation should not be the primary object of attention. You don’t need to perform extensive analysis.
- Perform an individualized assessment.
- You shouldn’t need to use scientific, medical, or statistical analysis to determine whether someone can perform a major life activity compared to most people in the general population.
- Don’t consider mitigating measures. It doesn’t matter if an individual chooses to forgo mitigating measures.
- It doesn’t matter if the impairment is episodic or in remission.
- Individuals do not need to be substantially limited in more than one major life activity.
- Effects of an impairment lasting fewer than six months can be substantially limiting. Impairments that last only a short period of time may be covered if sufficiently severe.
Although the EEOC claims there is no “per se” disability, the regulations indicate that an individual assessment of “some kinds of impairments will virtually always result in a determination of disability,” and retain the same examples (deafness, blindness, intellectual disabilities, missing limbs, the 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).
Employers will probably need to provide more reasonable accommodations. However, the reasonable accommodation process should be simpler. For example, to the extent employers may have spent time reviewing medical records to determine whether a particular individual’s diabetes or epilepsy satisfied the legal definition of a substantially limiting impairment, there may be a cost savings in terms of reduced time spent by front-line supervisors, managers, HR staff, and even employees who request reasonable accommodations.
The third prong of the definition of a disability (“regarded as”) warrants some attention. Coverage under this prong should not be difficult for individuals to establish. Employers need not have considered whether a major life activity was substantially limited, and an individual need not demonstrate that he or she is substantially limited in a major life activity. This should be the primary means of establishing coverage in cases that do not involve reasonable accommodation, and consideration of coverage under the first and second prongs will generally not be necessary except in situations where an individual needs a reasonable accommodation. Where an impairment is both transitory and minor, it is exempted from coverage under this prong, however.
According to the preamble of the regulations, there are 38.4 million people in the workforce whose coverage is clarified under the new law and regulations. These are applicants or employees who will now be protected because of the changes. This may result in an increase of millions of requests for accommodations.
In light of the new law and its implementing regulations, the number of EEOC charges and lawsuits filed is expected to increase. In part, because more individuals with disabilities might file charges with the EEOC, and because plaintiff’s lawyers, who previously might not have filed an ADA lawsuit because they believed that an employee would not be covered, will now be more inclined to file lawsuits in cases where they believe that discrimination on the basis of disability — now broadly defined — has occurred.