EEOC Issues Final Regulations Implementing the ADA

April 13th, 2011 | By Jules Halpern Associates | ADA, Disability, Discrimination

The ADA has a three-pronged definition of disability. An individual alleging an ADA violation only needs to meet one of the definitions of disability to be covered by the law. The ADA defines “disability” as:

1. A physical or mental impairment that substantially limits one or more of the major life activities (MLA) of such individual (referred to as the “actual disability” prong); or

2. A record of such impairment (referred to as the “record of” prong); or

3. Being regarded as having such an impairment (referred to as the “regarded as” prong).
In addition to meeting the definition of disability, an individual seeking the ADA’s protections must also be able to establish that he or she is qualified for the job  (i.e., he or she is able to perform the essential functions of the job with or without reasonable accommodations).

“Actual Disability” Prong/Physical or Mental Impairment

Under the ADA’s “actual disability” prong, a person has a disability if he/she has a “physical or mental impairment that substantially limits one or more of the major life activities of such individual.” The EEOC’s regulations provide a non-exhaustive list of impairments included in the definition of physical or mental impairment. The non-exhaustive list includes:

•  Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine;

• Any mental or psychological disorder, such as an intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

When examining this list, employers should focus on the phrase “non-exhaustive” and recognize that other disorders may qualify as physical or mental impairments. While the list does not include pregnancy itself, pregnancy-related disorders could be considered physical or mental impairments.

The final regulations also include a non-exhaustive list of major life activities, including: 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 final regulations also abandoned the U.S. Supreme Court’s former ruling that a MLA had to be of “central importance to daily life,” noting that the term “major” is not meant to create a demanding standard.

One of the most controversial aspects of the EEOC’s proposed ADAAA regulations was a “per se” list of impairments which would always be considered disabilities covered by the ADA. However, after receiving numerous complaints from the business community, the EEOC removed the “per se” label from the final regulations and noted that “disability” is to be determined on an individualized assessment basis. However, the EEOC still included in the final regulations a list of “predictable assessments” – medical conditions whose inherent nature almost always gives rise to a substantial limitation of a MLA. As a result, the difference between the proposed regulations’ per se list and the final regulations’ list of predictable assessments appears to be a case of form over substance. The final regulations’ list of predictable assessments includes:

Deafness, blindness, intellectual disability (formerly termed mental retardation), partially or completely missing limbs or mobility impairments, autism, cancer, cerebral palsy, diabetes, epilepsy, Human Immunodeficiency Virus (HIV), multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.

“Substantially Limits”

One of the ADAAA’s major purposes was to reverse the U.S. Supreme Court’s ruling that an impairment needs to “severely restrict” a MLA in order for it to be considered “substantially limiting.” Congress felt this was too demanding a standard to meet, and sought to lower the bar in order to restore the ADA’s intended broad coverage.  The final regulations therefore provide the following nine rules of construction to assist employers in determining whether an impairment “substantially limits” a MLA:

  1. The term “substantially limits” is to be interpreted broadly – it is not a demanding standard.
  2. An impairment need not prevent, or significantly or severely restrict, the individual from performing a MLA in order to be considered substantially limiting.
  3. The primary object of attention in ADA cases should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual’s impairment substantially limits a MLA.
  4. Determining whether an impairment substantially limits a MLA requires an individualized assessment. However, in making the assessment the term “substantially limits” shall be interpreted and applied to require a degree of functional limitation that is lower than the pre-ADAAA standard.
  5. The comparison of an individual’s performance of a MLA to the performance of the same MLA by most people in the general population usually will not require scientific, medical, or statistical analysis.
  6. The determination of whether an impairment “substantially limits” a MLA must be made without regard to the helpful effects of “mitigating measures.”  The one exception is that the ameliorative effects of ordinary eyeglasses or contact lenses shall be considered in determining whether someone is substantially limited in the performance of a MLA.
    •  Examples of mitigating measures include but are not limited to medication, medical supplies, low-vision devices (devices that magnify), prosthetics, hearing aids or cochlear implants, mobility devices, oxygen therapy equipment, assistive technology, and human-mediated treatments such as psychotherapy, behavioral therapy or physical therapy.
  7. An impairment that is episodic or in remission is a disability if it would substantially limit a MLA when active (e.g., epilepsy or cancer). Episodic conditions that impose only minor limitations, even when active, will not meet the definition of disability.
  8. An impairment that limits one MLA need not substantially limit other MLAs in order to be considered a substantially limiting impairment.
  9. The six-month “transitory” part of the “transitory and minor” exception to coverage under the “regarded as” prong (see below) does not apply to the definition of disability under the “actual disability” and “record of” prongs.  (In other words, individuals with an actual disability or a record of a disability which lasts less than six months can still be considered disabled under the ADA.)

The EEOC’s final regulations also provide employers with certain factors that may be considered when comparing whether a major life activity is substantially limited by an impairment. These factors include the condition or manner under which the individual performs the MLA; the length of time it takes to complete the MLA; the difficulty or effort required to perform the MLA; any pain experienced performing the MLA; the way an impairment affects the operation of a major bodily function; and/or any negative side effects of mitigating measures, such as those from medication.

“Record Of” Prong

As discussed above, the final ADAAA regulations make many changes to the “actual disability” prong of the definition of disability. Many of the changes discussed above also apply to the “record of” prong of the definition of disability, because the same individualized assessment must be done in order to determine whether or not an individual has a “record of” (i.e., has a history of, or has been misclassified as having) an impairment that substantially limits a MLA.

An individual with a “record of” a disability may be entitled to a reasonable accommodation if needed and related to the past disability. Generally, this is a minor reasonable accommodation obligation and will not cause undue hardship. For example, an employee with an impairment that previously limited, but no longer substantially limits, a MLA may require a schedule change to allow the employee to attend follow-up appointments with his/her doctor.

“Regarded As” Prong

The third prong of the ADA’s definition of disability is the “regarded as” prong. An individual is “regarded as” having an impairment if he or she is subjected to a prohibited action because of an actual or perceived physical or mental impairment, regardless of whether or not that impairment substantially limits, or is perceived to substantially limit, a major life activity.

The EEOC has made it clear in its final regulations that most cases of disability discrimination will now be brought under this prong of the disability definition because proving that one is “regarded as” disabled will generally be easily accomplished. These cases will now focus on whether the individual was “qualified” and whether the parties engaged in the interactive process, not whether the individual meets the definition of disability.

Any time a covered entity takes prohibited action against an individual because of an actual or perceived impairment, that individual is “regarded as having such an impairment” under the ADA. However, regarding someone as being disabled does not, by itself, establish liability.  The individual must also prove discrimination on the basis of the disability, which will require an analysis of whether the individual was qualified for the position sought or held.

The final regulations clarify that a covered entity does not have to provide a reasonable accommodation to an individual who only meets the definition of disability under the “regarded as” prong.  Therefore, any individual seeking to bring an ADA claim for an employer’s failure to provide a reasonable accommodation must do so under either the “actual disability” or “record of” prongs of the ADA.

The final regulations also include a possible defense to a charge of discrimination by an individual claiming coverage under the “regarded as” prong. An employer can assert the defense that the impairment is or would be both “transitory and minor.” Transitory means that the actual or expected duration of the impairment is less than six months. As noted above, this defense does not apply to the definition of disability under the “actual disability” or “record of” prongs.

What This Means For Employers

In light of these changes, it is more important than ever that employers engage in conversations with disabled employees and applicants to determine whether there is a reasonable accommodation that would enable the individual to perform the essential functions of his/her job.  These conversations are referred to as the “interactive process,” and maintaining written evidence of this process will be the key to successfully defending against an ADA lawsuit or human rights charge.

The ADAAA and its accompanying regulations alter the ADA’s definition of disability. These changes will most likely affect litigation by shifting the emphasis in ADA cases. The final regulations make it considerably easier for an individual to meet one of the ADA’s definitions of disability, which means many more individuals will be able to make it past the threshold question of whether or not that individual has a disability.  The primary emphasis in ADA cases and human rights charges will now be whether the employee was reasonably accommodated, or should have been reasonably accommodated.

Jules Halpern Associates LLC

Workplace and Education Law Advisors

Jules Halpern Associates LLC
JULES HALPERN ASSOCIATES LLC is a boutique law firm committed to serving our clients in all facets of their workplace issues. We provide personalized, practical advice that resonates with our clients’ business objectives.
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