United States: New ADA Regulations Highlight Law’s Broad Scope

In March, the Equal Employment Opportunity Commission (EEOC) published the final regulations for the Americans with Disabilities Act Amendments Act (ADAAA), noting its intention "to implement fully the requirements of the ADAAA's broader definition of 'disability.'"

The ADAAA:

• expanded the definition of "major life activities" as that term is used in defining a "disability;"
• clarified that an employee may bring a claim for suffering an adverse action based on being perceived as having a physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity, unless the impairment is transitory (lasting less than 6 months) and minor;
• reversed the U.S. Supreme Court by providing that the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures (e.g., medication, prosthetics, mobility devices, but not eyeglasses or contact lenses);
• confirmed that an impairment that is episodic or in remission is still a disability if it would substantially limit a major life activity when active;
• reiterated that the definition of disability must be construed in favor of broad coverage; and
• expressed the expectation that the EEOC would revise its regulations regarding the term "substantially limits."

BASIC DEFINITION OF DISABILITY

The ADAAA retains the Americans with Disabilities Act of 1990's (ADA) basic definition of "disability" as:

• an impairment that substantially limits one or more major life activities;
• a record (or past history) of such an impairment; or
• being regarded as having such an impairment.

However, the ADAAA's express purpose, as well as that of the recently published regulations, is to significantly change the way that these statutory terms should be interpreted.

"SUBSTANTIALLY LIMITS" DEFINITION

Rather than define the term "substantially limits," the new regulations set forth "rules of construction" to be used when determining whether an impairment substantially limits an individual's ability to perform a major life activity. These rules of construction include:

• the term "substantially limits" is to be construed broadly in favor of expansive coverage;
• an impairment need not prevent or severely or significantly restrict a major life activity to be considered substantially limiting;
• the determination of whether an impairment substantially limits a major life activity requires an individualized assessment and is to be made without regard to the ameliorative effects of mitigating measures, such as medication or hearing aids (with the exception of ordinary eyeglasses or contact lenses);
• this individualized assessment should not require extensive analysis and will not ordinarily require scientific, medical, or statistical evidence;
• an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; and
• there is no durational minimum required for an impairment to be considered substantially limiting.

"REGARDED AS" PRONG

Further, the regulations alter the analysis used to determine whether an individual is "regarded as" disabled by his or her employer. The "regarded as" prong now prohibits discrimination based on the employer's alleged perception of a mental or physical impairment, even where that impairment is not perceived as an actual disability. In other words, an employer may "regard" an employee as disabled even where the employer does not believe that the employee is "substantially limited in a major life activity." Instead, the individual must merely show that that he or she has been subjected to an action prohibited by the ADA because of an actual or perceived impairment that is not both "transitory and minor."

MAJOR LIFE ACTIVITIES

Finally, the new regulations eliminate the definition of major life activities as those basic activities that most people in the general population "can perform with little or no difficulty." Instead, the regulations provide examples of activities that qualify as "major life activities." The new regulations also provide a non-exhaustive list of certain impairments that will virtually always be disabilities, such as:

• deafness,
• blindness,
• intellectual disabilities,
• partially or completely missing limbs or mobility impairments requiring the use of a wheelchair,
• autism,
• cancer,
• cerebral palsy,
• diabetes,
• epilepsy,
• HIV infection,
• multiple sclerosis,
• muscular dystrophy,
• major depressive disorder,
• bipolar disorder,
• post-traumatic stress disorder,
• obsessive compulsive disorder, and
• schizophrenia.

The EEOC has clarified that the analysis of whether any of these impairments substantially limits a major life activity still requires an individualized assessment. However, the individualized assessment will, in virtually all cases, result in a finding that the impairment substantially limits a major life activity.

CONCLUSION

The most significant impact of these new regulations is the limitation on an employer's ability to argue that an employee is not "disabled" under the ADA. Given the broader interpretation of the ADA's language, virtually any impairment may, and likely will, constitute a "disability" under the law. Cases will focus on whether the employee and employer properly engaged in the interactive process, whether a reasonable accommodation was provided, and if not, why.

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.