New Regulations Implementing ADA Amendments Issued

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April 22, 2011

In the past, the U.S. Supreme Court issued case rulings which narrowly defined the term “disability” under the Americans with Disabilities Act (ADA). This resulted in individuals with certain conditions, such as cancer, diabetes, and epilepsy, not qualifying for protection under the ADA. To establish a broader definition of disability, Congress enacted the Americans with Disabilities Act Amendments Act (ADAAA). The ADAAA went into effect on January 1, 2009.
The ADAAA overturned the U.S. Supreme Court decisions that Congress believed had interpreted the definition of “disability” too narrowly. The ADAAA states in strong terms that the definition of “disability” should be interpreted broadly. The effect of this change was 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.
In the ADAAA, Congress also directed the Equal Employment Opportunity Commission (EEOC) to revise its regulations to conform to the changes made by the ADAAA. On September 23, 2009, the EEOC issued a Notice of Proposed Rule Making in which it sought comments on proposed new regulations. The EEOC received more than 600 comments in response. It reviewed those comments and then issued the final new regulations on March 25, 2011. The regulations take effect on May 20, 2011.
Under the new regulations, the ADA’s definition of the term disability remains as before – a physical or mental impairment that “substantially limits” one or more “major life activities,” having a record (or past history) of such an impairment, or being regarded as having a disability. The new regulations make significant changes, however, as to how these terms are interpreted.
Disability Expanded
The new regulations set forth a list of principles to guide employers in determining whether a person has a disability protected by law and whether the person is (or has been) substantially limited in performing a major life activity. Those principles include:

The scope of the meaning of “disability” is to be construed broadly and to the maximum extent permitted under the law.
The determination of disability should not require extensive analysis.
With one exception (ordinary eyeglasses or contact lenses), mitigating measures, which would have previously excluded a condition as qualifying as a disability, are not to be considered when determining whether someone has a disability. Mitigating measures which are excluded can include medication and assistive devices like hearing aids.
Impairments that are episodic (for example, epilepsy) or in remission (such as leukemia) are still disabilities if they would be substantially limiting when active.
The term “substantially limits” is to be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADA.
The determination as to whether an impairment substantially limits a major life activity requires an individualized assessment.
An impairment need not prevent or severely or significantly limit a major life activity to be considered “substantially limiting.” (Nonetheless, not every impairment will constitute a disability.)
Although the determination as to whether an impairment substantially limits a major life activity will not usually require scientific, medical, or statistical evidence, such evidence may be used if appropriate.

The regulations also give examples of impairments that should easily be determined to be disabilities. These include: HIV infections; diabetes; epilepsy; bipolar disorder; deafness; intellectual disabilities (formally known as mental retardation); partial or completely missing limbs; mobility impairments requiring the use of wheelchair; autism; cancer; cerebral palsy; multiple scleroses; muscular dystrophy; major depressive disorder; post traumatic stress disorder; obsessive-compulsive disorder; and schizophrenia.
Major Life Activities
 
The new regulations clarify that the term “major life activities” (for purposes of the term “disability”) includes functions of the immune system, normal cell growth, and brain, neurological, and endocrine functions. The regulations provide other examples of major life activities such as: 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.
Regarded as Disabled
 
As mandated by the ADAAA, the regulations make it easier for individuals to establish protection under the ADA under the “regarded as being disabled” portion of the definition of “disability.” The new focus is a more objective test that looks to how a person has been treated, rather than the more subjective test as to what an employer believed about the nature of the person’s impairment.
In accord with the new regulations, an individual can establish a “regarded-as being disabled” claim if an employer takes adverse action against the individual based on the individual’s impairment, or an impairment that the employer believes the individual has, unless the impairment is transitory and minor. The regulations define “transitory” as six months or less. The term “minor” is undefined.
What Does This Mean for You?
 
With the new broad construction of what constitutes a disability, plaintiffs will have a lower burden of proof to meet to establish a disability. Couple this with the potential of a high damage award, and one can expect that disability litigation will increase in the near future. Indeed, the EEOC’s statistics show that in the last fiscal year, there was a 17% increase in ADA charges.
At the workplace level, employers should be prepared to conduct an individualized assessment of all impaired employees. Employers should approach every employee impairment situation with the initial assumption that the impairment constitutes a disability under the law and that the employer should engage in the accommodation process (e.g., interactive discussion). When an employer accommodates an employee, the employer should document that action as it may be helpful in defending against a later charge that the employer is failing to accommodate employees with disabilities. Managers and supervisors should be trained on the new regulations and what they mean for the employer (i.e., its duties, obligations, and potential liability for violations). In addition, staff should be trained as to how to address requests for accommodations and how to obtain medical information from an employee s doctor. Job descriptions may also need revising and updating to comply with the guiding principles of the new regulations. Employers should take these actions now to avoid potential liability later.
If you have questions regarding the above, please feel free to contact any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

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