On March 25, 2011, the Equal Employment Opportunity Commission (EEOC) issued final regulations implementing the ADA Amendments Act of 2008 (ADAAA). The final regulations are published in the Federal Register and will become effective on May 24, 2011.
The ADAAA was signed into law by President George W. Bush on September 25, 2008, and went into effect January 1, 2009. The EEOC issued a Notice of Proposed Rulemaking (“NPRM”) in September 2009, to issue regulations interpreting the ADAAA. The EEOC thereafter received more than 600 comments to the NPRM. The final regulations are the EEOC’s official interpretation and guide to the ADAAA amendments after considering the public comments received on the NPRM.
The goal of the ADAAA, as confirmed by the final regulations, expands the definition of “disability” to be construed “to the maximum extent permitted by the terms of the ADA.” The ADAAA alters the current legal landscape of interpreting the ADA by rejecting the holdings of several U.S. Supreme Court decisions and rejecting portions of the EEOC’s prior ADA regulations. “The effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.”
Although certainly not an exhaustive list, here is a brief overview of a few points covered by the final regulations:
Expanded Coverage of Disabled Individuals
The ADAAA retains the ADA’s basic definition of “disability”-(1) a physical or mental impairment that substantially limits one or more major life activities, (2) a record of such an impairment, or (3) being regarded as having such an impairment. However, the final regulations state that “[t]he primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of disability. The question of whether an individual meets the definition of disability under this part should not demand extensive analysis.” Thus, the EEOC believes the primary focus of an ADA claim should be on the employer’s conduct, and not in determining whether the employee is “disabled.”
Moreover, although an individual could be covered by the ADA under one or more of the above-stated prongs, the final regulations clarify that the “regarded as” prong should be the primary means of establishing coverage in ADA cases that do not involve a claim for lack of reasonable accommodations. Accordingly, the final regulations specifically state that where an employee does not require reasonable accommodations, claims can only proceed under the “regarded as” prong of the definition of “disability.”
In an attempt to clarify the definition of “disability” and provide guidance to employers, employees, and the courts, the NPRM contained a list of impairments that would “consistently meet” the definition of “disability,” along with a list that might meet the definition, and a third list that would not likely meet the definition. The EEOC was inundated with negative comments regarding the lists because of the ADA’s prior approach of individualized assessments.
In response, the final regulations retained only the first list-disabilities that will “consistently meet” the definition of disabled under the ADA. The non-exhaustive list of disorders that “will, at a minimum, substantially limit the major life activities” includes: deafness, blindness, autism, cancer, cerebral palsy, diabetes, epilepsy, Human Immunodeficiency Virus (HIV), multiple sclerosis, muscular dystrophy, bipolar disorder, post-traumatic stress disorder (PTSD), obsessive compulsive disorder (OCD), major depressive disorder, and schizophrenia. Although not exhaustive, the inclusion of this list means that virtually every individual suffering from an above-stated illness is “disabled” under the ADA.
Major Life Activities
The NPRM sought to expand the definition of “major life activities” through two non-exhaustive lists. The first list included activities such as caring for oneself, seeing, hearing, eating, sleeping, walking, sitting, standing, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, interacting with others, and working. The second list included major bodily functions of the immune system, special sense organs, normal cell growth, digestive, bladder, and musculoskeletal functions. Both lists were adopted in the final regulations and contain additional activities not listed here, but can be found in Section 1630.2(i) of the ADA.
Moreover, the final regulations adopted language that effectively overrules Toyota Mfg. Inc. v. Williams, 534 U.S. 184 (2002). In Toyota, the United States Supreme Court held that when determining whether an activity qualified as a “major life activity,” the activity must have been of “central importance to most people’s daily lives.” Id. at 187. The ADA no longer requires such a finding before determining whether an activity by an individual qualifies as a “major life activity.” Although a new limitation is not espoused, this language broadens what will be considered a “major life activity.”
Substantially Limits-Nine Rules of Construction
The NPRM sought to define “substantially limits” and lower the threshold for meeting the requirement. Following the notice and comment period, the final regulations do not define the term “substantially limits,” but the comments indicate that it should be a low threshold to meet. The final regulations state that “’substantially limits’ is a lower threshold than ‘prevents’ or ‘severely or significantly restricts,’ as prior Supreme Court decisions and the EEOC regulations had defined the term.” Thus the threshold for meeting “substantially limits” has been lowered.
The final regulations include nine rules of construction to be applied when determining whether an impairment “substantially limits” a major life activity:
1. The definition of “‘substantially limits’” shall be construed broadly in favor of ‘expansive coverage.’”
2. An impairment does not need to prevent, or significant or severely restrict, the individual from performing a major life function to be considered significantly limiting. Nonetheless, not every impairment is substantially limiting.
3. “The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations, not whether an individual’s impairment ‘substantially limits’ a major life activity.”
4. An individualized assessment is required for each individual-however, the standard should be lower than has previously been applied.
5. “The comparison of an individual’s performance of a major life activity to the performance of the same…activity by most people in the general population” should not ordinarily require scientific, medical, or statistical analysis.
6. The ameliorative effects of mitigating measures (other than glasses or contacts) should not be considered when determining whether an impairment substantially limits a major life activity.
7. An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”
8. “An impairment that substantially limits one major life activity need not substantially limit other major life activities in order to be considered a substantially limiting impairment.”
9. Short-term impairments (lasting less than six months), can be considered “substantially limiting.”
Although these factors may guide courts in their assessment of “substantially limits,” in light of the rules of construction explained by the final regulations, such an assessment may “often be unnecessary” when analyzing “whether an impairment ‘substantially limits’ a major life activity.”
The final regulations alter the current landscape of the ADA and ultimately allow for more individuals to qualify as “disabled” under the ADA. Employers should be aware of the changes made by the ADAAA to better accommodate employees who are disabled. Although this is not an exhaustive review, we will keep you posted on any major court decisions interpreting the amended ADA.