The ADA Amendments Act of 2008 (“ADAAA”) was enacted on September 25, 2008, and become effective on January 1, 2009. The law made a number of significant changes to the definition of “disability.” It also directed the U.S. Equal Employment Opportunity Commission (“EEOC”) to promulgate amended regulations reflecting the ADAAA’s changes. In response to this directive, the EEOC issued its final regulations on March 24, 2011, and the regulations became effective on May 24, 2011. What do the new regulations mean for businesses covered under the ADAAA – that is, businesses with fifteen or more employees? The short answer is that many more individuals are covered by the law and will be able to claim a disability. Highlights of these new regulations are set forth below. Most employers are familiar with the definition of “disability” under the ADA. Congress did not change the definition of the first two prongs of coverage, the socalled “actual disability” and “record of” prongs. Instead, Congress provided interpretive tools designed to expand coverage of who is “disabled” under the Act and shift the focus of the analysis to whether covered employers have complied with their obligations and discrimination has occurred. The regulations implement this goal.
Accordingly, the “actual disability” prong of the ADAAA still defines “disability” as “a physical or mental impairment that substantially limits one or more major life activities.” Similarly, the “record of” prong is still defined as an individual with a record of such an impairment. The changes lie in the interpretation of the terms “substantially limits” and “major life activities.” First, there are now nine rules of construction that apply in determining whether a “substantial limitation” exists. The rules of construction direct that the term “substantially limits” should be construed broadly and in favor of expansive coverage. The regulations expressly state that the term is not meant to be a demanding standard. Three of the nine rules of construction merit detailed examination, because they legislatively overrule Supreme Court cases that held otherwise. First, the determination of whether an impairment substantially limits a major life activity should be made without regard to the ameliorative effects of mitigating measures. This means that if an individual has a medical condition, such as Epilepsy, that is completely controlled by medication, the determination of whether the individual is disabled must not take the mediation into account. Other examples of ameliorative measures include medical equipment, prosthetics and other types of assistive technology. The one exception to this rule is with respect to ordinary eyeglasses or contact lenses, which shall be considered in determining whether an individual is disabled.
While ameliorative or mitigating measures are not to be considered when determining if an individual is disabled, the regulations also make clear that the no ameliorative side effects of a mitigating measure may be taken into account to determine if a substantial limitation exists. For example, if the medication an individual takes to control a medical condition has a negative side effect, this may be taken into account in assessing whether the individual is substantially limited.
Second, an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. This rule is particularly applicable to certain mental impairments, such as Depression, which tend to be episodic and which were often determined not to be “substantially limiting” prior to the enactment of the ADAAA.
Third, and somewhat related to the rule stated above, an impairment that is temporary – for example, one that will last or is expected to last fewer than six months – can be substantially limiting.
On the other hand, a temporary or chronic impairment of a short duration, such as the flu or a broken bone, will not normally be considered as limiting a major life activity. Moreover, episodic conditions that impose only minor limitations will also not normally meet the definition of disability.
The regulations also provide for a “condition, manner or duration” framework for evaluating whether an individual is substantially limited. The interpretive Guidance makes clear, however, that the “duration” analysis focuses on the time it may take the individual to perform a major life activity or the length of time the individual can perform a major life activity, as compared to most people in the general population. The analysis should not focus on whether the impairment itself is permanent or long term.
The ADAAA and the final regulations also expand the definition of “major life activities.” In particular, the regulations stipulate that the term “major” shall not be interpreted strictly to create a demanding standard of disability. Whether an activity is a major life activity is not determined by whether it is of “central importance to daily life.” Examples of major life activities include: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, working, sitting, reaching and interacting with others. Further, “major bodily functions” has been added to the definition of major life activities. The operation of a major bodily function also includes the operation of an individual organ within a body system.
The “record of” prong of ADAAA coverage applies to individuals who were previously substantially limited in a major life activity, but are no longer so, as well as individuals who have been misclassified as substantially limited by either their health care providers or employers. All of the interpretive rules set forth above apply to the “record of” prong as well as the “actual disability” prong of the ADAAA.
In addition, once an individual has established coverage under either the “actual disability” or “record of” prongs, which as set forth above is not a difficult task and should not require extensive analysis, the focus should shift to the “interactive process” of determining whether a reasonable accommodation is needed, and if so, what the reasonable accommodation consists of. (Note that even under the “record of” prong, an individual may be entitled, absent undue hardship, to a reasonable accommodation if needed and related to a past disability. For example, an employee with an impairment that previously limited, but not longer substantially limits, a major life activity may need leave or a schedule change to permit her to attend follow-up or “monitoring” appointments with a health care provider.)
Another key change contained in the ADAAA and captured in the implementing regulations relates to the third prong of coverage, the so-called “regarded as” prong. The standard for coverage under this prong has been greatly relaxed and is now defined as an instance where an individual has been subjected to an action prohibited by the ADA as amended because of an actual or perceived impairment that is not both “transitory and minor.”
When determining if an individual is covered under this third prong of the ADAAA, the terms “substantially limited” and “major life activity” are not relevant. Moreover, a reasonable accommodation is not required for an individual who is covered solely under the “regarded as” prong. The key issue for “regarded as” claims will be whether the employer took an adverse employment action against an individual because of the individual’s physical or mental impairment, keeping in mind that the impairment need not be “substantially limiting,” it need only not be both “transitory and minor.”
The major take-away of the final regulations is that many more individuals will be entitled to reasonable accommodations for their physical or mental conditions. To that end, the revised and expanded definition of “disability” under the ADAAA and its implementing regulations should result in employers engaging in the interactive process more frequently and earlier on, by focusing less on whether an employee meets the statutory definition of ‘disabled’ and more on whether a reasonable accommodation is needed and what the accommodation should consist of.
A second important consideration is that the ADAAA and the implementing regulations apply to job applicants as well as employees. As such, employers must be cognizant of the requirements of the Act both during the hiring process as well as during the course of the employment relationship.
Lori Rittman Clark is a partner in the Hartford, Connecticut office of Hinckley Allen & Snyder, LLP, where she focuses her practice on employment law. Lori represents companies of all sizes in courts and before administrative agencies on a variety of employment- related claims, and also counsels employers on compliance issues.
Re-published courtesy of USLAW Magazine, Fall/Winter 2011