What Every Employer Needs To Know
The ADA Amendments Act of 2008 (ADAAA) required the Equal
Employment Opportunity Commission (EEOC) to amend its ADA
regulations. The final regulations were just published on March 25,
2011, and are effective May 24, 2011. There is no doubt that the
Act and final regulations offer protection to a much broader group
of individuals which employers may not have previously considered
to be disabled. Employers need to be more alert than ever about
whether an employee's work restrictions, off-hand or other
indirect comments trigger the ADAAA and should also become familiar
with which conditions are now considered disabilities for which an
accommodation may need to be provided.
Traditionally, employers have defended ADA disability lawsuits by
arguing that the employees with work restrictions were not covered
by the Act because they did not have disabilities. The ADAAA and
the final regulations have expanded the definition of disability.
An employee is disabled if they can establish one of three
criteria: he or she (1) has a physical or mental impairment that
substantially limits one or more of the major life activities of
such an individual; (2) has a record of such impairment; or (3) is
regarded as having such impairment.
The meaning of the language "substantially limits" and
"major life activities" has changed. Courts previously
defined these terms to mean a significant restriction on an
activity that is of central importance to most people's daily
lives. For example, moderate restrictions were not considered
disabilities under prior law, where now the same conditions or
restrictions may in fact rise to the level of a protected
disability.
The final regulations implement the expansion of the concept of
both "substantially limits" and "major life
activities." Major life activities now include the operation
of major bodily functions involving the immune system, special
sense organs, and skin; normal cell growth; and digestive,
genitourinary, bowel, bladder, neurological, brain, respiratory,
circulatory, cardiovascular, endocrine, hemic, lymphatic,
musculoskeletal and reproductive functions. Most importantly, the
regulations clarify that the term "major life activity"
does not have to be a demanding standard or interpreted strictly
nor does it matter if the activity is of central importance to
daily life.
The final regulations do not provide a precise definition of
"substantially limits," rather, establish guidelines for
reviewing impairments to determine if the impairments create a
substantial limitation. Thus, an impairment does not need to
prevent, or significantly or severely restrict, an individual from
performing a major life activity in order to be substantially
limiting. The degree of functional limitation is to be a much lower
standard than under prior law. In order to determine whether an
impairment substantially limits a major life activity, employers
are instructed to consider the conditions under which the
individual performs the major life activity, the manner in which
the individual performs the major life activity, and the duration
of time it takes to perform the major life activity. The facts that
may be considered in this regard are the effort or time required to
perform a major life activity, pain experienced when performing the
major life activity, the length of time that the major life
activity can be performed, and the way an impairment affects a
major bodily function.
According to the regulations, several conditions will almost always
be considered a substantial limitation on a major life activity:
deafness substantially limits hearing; blindness substantially
limits seeing; an intellectual disability (formerly termed mental
retardation) substantially limits brain function; partially or
completely missing limbs or mobility impairments requiring the use
of a wheel chair substantially limit musculoskeletal function;
autism substantially limits brain function; cancer substantially
limits normal cell growth; cerebral palsy substantially limits
brain function; diabetes substantially limits endocrine function;
epilepsy substantially limits neurological function; Human
Immunodeficiency Virus (HIV) infection substantially limits immune
function; multiple sclerosis substantially limits neurological
function; muscular dystrophy substantially limits neurological
function; and major depressive order, bipolar disorder,
post-traumatic stress disorder, obsessive compulsive disorder and
schizophrenia substantially limit brain function.
With respect to the use of mitigating measures, and with the
exception of ordinary glasses or contacts, it is also irrelevant
that the effects of an impairment are completely resolved by
medication or other aides. Thus, a person can have an impairment
that is completely controlled through medication and not actually
have any limitations on life activities as a result. Still, the
person is to be deemed disabled under these regulations. Moreover,
an impairment can be of short duration, intermittent, or episodic
and still qualify as a disability.
With respect to claims that involve allegations that an employee is
or was "regarded as" disabled, the regulations clarify
that the concept of "substantially limits" and
"major life activity" are not part of the analysis. By
way of an example set forth in the regulations, if an employer
terminates an employee because he has cancer, the employer has
regarded the employee as an individual with a disability. Employers
can, however, avail themselves of a defense to a "regarded
as" claims by arguing that the impairment, real or perceived,
is objectively both transitory (lasting less than six months) and
minor. The regulations take pains to point out that the transitory
and minor defense only applies to regarded as claims. Thus, the
EEOC's position is that, under the first prong of the
disability definition, a 20-pound lifting restriction that lasts
for less than six months and stems from a back impairment can still
be considered a disability.
Although the regulations state that not every impairment qualifies
as a disability, the boundaries of the new definitions will clearly
be tested through increased litigation. Employers should also be
mindful that with an expansion of the definition of disability,
they should be even more vigilant about what processes are in place
to tightly control the flow of information about employees'
medical information as employees test whether or not their
particular circumstances qualify them for an accommodation. The
best practice for managing disability issues is one area that is
perhaps unchanged -- engage employees whenever appropriate to
determine what can be done to assist them. If an employee has a
work restriction (whether it is written, oral, or observed), it may
be appropriate, given the circumstances, to meet with the employee
to discuss whether an accommodation can or should be made. If an
employee or applicant demonstrates a physical or mental impairment
that would limit his or her ability to request an accommodation,
initiate an informal interactive process to accommodate the
employee. As always, keep detailed records of requests made, and
accommodations granted or denied, along with some evidentiary
back-up for the rationale behind the decisions.
Finally, employers should review their policies and practices
governing leave and the interactive process set forth in the ADA
and focus on their reasonable accommodation procedures, as well as
review and update the essential functions and qualifications of
jobs in the workplace.
The final regulations and the EEOC's guidance materials on the
ADAAA are available at http://www.eeoc.gov/laws/statutes/adaaa_info.cfm.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
