SOURCE: http://www.legalworkplace.com/
Understanding How The ADAAA And The New EEOC Regulations Have Changed The ADA
The ADA Amendments Act of 2008 (ADAAA), which went into effect January 1, 2009, significantly expanded the protections of the original Americans with Disabilities Act (ADA) to include more individuals with less severe impairments.
Congress had expected that the definition of a disability under the ADA would be interpreted consistently with how courts had applied the definition of a "handicapped individual" under the Rehabilitation Act of 1973; however, that was not the case. A series of U.S. Supreme Court cases — most notably Sutton v. United Air Lines (527 U.S. 471, 1999) and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams (534 U.S. 184, 2002) — significantly narrowed the scope of the ADA's reach, thus eliminating protection for many persons whom Congress had intended to protect.
The ADAAA directed the Equal Employment Opportunity Commission (EEOC) to amend its existing ADA regulations to conform with the new Act. In September 2009, the EEOC released proposed regulations interpreting the ADA as amended by the ADAAA.
"Disability" Redefined
The ADA originally defined a disability as:
having a physical or mental impairment that substantially limits one or more major life activities;
having a record of such an impairment; or
being regarded as having such an impairment.
The ADAAA and the proposed regulations preserve this definition, but expand upon the meaning of the terms used in the definition to provide "broad coverage" for individuals under the Act.
Major Life Activities
Where the ADA was silent on what constitutes a major life activity, the ADAAA stated that major life activities include, but are not limited to:
caring for oneself,
performing manual tasks,
seeing,
hearing,
eating,
sleeping,
walking,
standing,
lifting,
bending,
speaking,
breathing,
learning,
reading,
concentrating,
thinking,
communicating, and
working.
The proposed regulations add three other major life activities:
sitting,
reaching, and
interacting with others.
The ADAAA also added a new major life activity category — major bodily functions, which includes, but is not limited to:
functions of the immune system,
cell growth,
digestive, bladder, and bowel functions,
neurological and brain functions,
respiratory and circulatory functions,
endocrine functions, and
reproductive functions.
The proposed regulations include additional examples of covered bodily functions:
hemic,
lymphatic,
musculoskeletal,
special sense organs and skin,
genitourinary, and
cardiovascular.
EEOC examples of covered disabilities: Kidney disease affects bladder function; cancer affects normal cell growth; diabetes affects functions of the endocrine system (e.g., production of insulin); epilepsy affects neurological functions or functions of the brain; and HIV/AIDS affect functions of the immune system and reproductive functions. Likewise, sickle cell disease affects functions of the hemic system, lymphedema affects lymphatic functions, and rheumatoid arthritis affects musculoskeletal functions.
Episodic impairments. The ADAAA and proposed regulations specifically state that an impairment that is episodic or in remission meets the definition of a disability if it would substantially limit a major life activity when active.
The proposed regulations provide examples of covered episodic impairments: epilepsy, hypertension, multiple sclerosis, asthma, diabetes, major depression, bipolar disorder, and schizophrenia. Similarly, if an impairment such as cancer is in remission, but there is a possibility that it could return in a substantially limiting form, then this would meet the definition of a "disability."
List of disabilities. The proposed regulations identify examples of impairments that will consistently meet the definition of "disability": deafness, blindness, intellectual disability (formerly known as mental retardation), partially or completely missing limbs, mobility impairments requiring use of a wheelchair (a mitigating measure), autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia. (This is not meant to be an exhaustive list of examples.)
The proposed regulations also provide examples of impairments that are usually not covered disabilities: the common cold, seasonal or common influenza, a sprained joint, minor and non-chronic gastrointestinal disorders, a broken bone that is expected to heal completely, appendicitis, and seasonal allergies that do not substantially limit a person's major life activities even when active.
The proposed regulations note that there are other types of impairments that may be disabling for some individuals but not for others, and therefore may require more analysis in order to determine whether they substantially limit an individual in performing a major life activity.
EEOC example #1: An individual with high blood pressure who is substantially limited in the functions of the circulatory system compared to most people, as indicated by the decrease in blood circulation caused by narrowing of the blood vessels, is an individual with a disability.
EEOC example #2: An individual with carpal tunnel syndrome who is substantially limited in performing manual tasks compared to most people, as indicated by the amount of pain experienced when writing or using a computer keyboard or the length of time for which such manual tasks can be performed, is an individual with a disability.
Substantially Limits
The High Court ruled in Toyota that in order to qualify as a substantially limiting disability, an impairment: 1) needed to "prevent" or "severely restrict" a major life activity, and 2) needed to restrict activities that are of "central importance to most people's daily lives." The ADAAA directed the EEOC to issue guidance that lowered the definition of "substantially limits" to a level consistent with Congressional intent.
The proposed regulations state that the term "substantially limits" must be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and should not require extensive analysis. According to the regulations, an impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.
Specifically, the regulations reiterate these ADAAA standards:
An impairment need not prevent, or significantly or severely restrict, an individual from performing a major life activity in order to be considered a disability.
An individual whose impairment substantially limits a major life activity need not also demonstrate a limitation in the ability to perform activities of central importance to daily life in order to be considered an individual with a disability.
EEOC example #1: Someone with a 20-pound lifting restriction that is not of short-term duration is substantially limited in lifting, and need not also show that she is unable to perform activities of daily living that require lifting in order to be considered substantially limited in lifting.
EEOC example #2: Someone with monocular vision whose depth perception or field of vision would be substantially limited, with or without any compensatory strategies the individual may have developed, need not also show that he is unable to perform activities of central importance to daily life that require seeing in order to be substantially limited in seeing.
An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.
EEOC example: An individual whose normal cell growth is substantially limited due to cancer need not also show that he is substantially limited in working or any other major life activity.
The comparison of an individual's limitation to the ability of most people in the general population often may be made using a common-sense standard, without resorting to scientific or medical evidence.
EEOC example #1: An individual with epilepsy will meet the definition of disability because he is substantially limited in major life activities such as functions of the brain or, during a seizure, functions such as seeing, hearing, speaking, walking, or thinking.
EEOC example #2: An individual with diabetes will meet the definition of disability because she is substantially limited in functions of the endocrine system.
In determining whether an individual has a disability, the focus is on how a major life activity is substantially limited, not on what an individual can do in spite of an impairment.
Note: The proposed regulations state that temporary, non-chronic impairments of short duration with little or no residual effects usually will not be considered disabilities.
Substantial limitation in working. With respect to the major life activity of working, the proposed regulations state that an individual with a disability will usually be substantially limited in another major life activity, which, therefore, generally makes it unnecessary to consider whether the individual is substantially limited in working.
In situations where this is not the case, an impairment may substantially limit a person's ability to meet certain job-related requirements, even though it does not impose substantial limitations outside the workplace. The regulations explain that an impairment substantially limits the major life activity of working when it substantially limits an individual's ability to perform, or to meet the qualifications for, a "type of work."
The concept of a "type of work" replaces the concepts of a "class" or "broad range" of jobs from the 1991 ADA regulation. A type of work may include: commercial truck driving, assembly line jobs, food service jobs, clerical jobs, or law enforcement jobs. A type of work may also be determined by reference to job-related requirements, such as: jobs requiring repetitive bending, reaching, or manual tasks; jobs requiring frequent or heavy lifting; and jobs requiring prolonged sitting or standing.
EEOC example #1: Carpal tunnel syndrome that does not substantially limit a machine operator in the major life activity of performing manual tasks when compared with most people in the general population nevertheless substantially limits her in the major life activity of working if the impairment substantially limits her ability to perform her job and other jobs requiring similar repetitive manual tasks.
EEOC example #2: An impairment that does not substantially limit an individual's ability to stand upright as compared to most people in the general population nevertheless substantially limits an individual in working if it substantially limits his ability to perform his job and other jobs that require standing for extended periods of time (e.g., jobs in the retail industry).
The proposed regulations note that the fact that an individual has obtained employment elsewhere is not dispositive of whether an individual is substantially limited in working.
EEOC example #1: Someone who, because of an impairment, cannot perform work that requires repetitive bending or heavy lifting is substantially limited in working, even if he also has skills that would qualify him to perform jobs that do not include these requirements.
EEOC example #2: An individual whose impairment substantially limits the ability to do repetitive tasks associated with certain manufacturing positions and who is denied a reasonable accommodation for a manufacturing job by her employer could be substantially limited in working, even if the individual performed similar work for another employer who provided an accommodation for this limitation.
"Record Of" A Disability
The proposed regulations clarify that an employer's knowledge of an individual's past substantially limiting impairment relates to whether the employer engaged in discrimination, not to whether an individual is covered.
"Regarded As"
The term "regarded as" was not defined in the ADA. Courts subsequently ruled that to succeed with a "regarded as" claim, employees needed to prove that their employer regarded them as being disabled because they were viewed as substantially limited in a major life activity.
Under the ADAAA and the proposed regulations, an employee only needs to demonstrate that they were subjected to prohibited action because of an actual or perceived physical or mental impairment, whether or not the impairment limits or is perceived to limit a major life activity, which means employees only need to prove that they were viewed as being impaired, regardless of whether the impairment rises to the level of a protected disability.
The proposed regulations go on to state that "regarded as" coverage can apply if an employer takes a prohibited employment action based on an individual's use of a mitigating measure for an impairment or for the symptoms of an impairment, even if the employer is unaware of the underlying impairment.
EEOC example #1: An individual who is not hired for a driving job because she takes anti-seizure medication is regarded as having a disability, even if the employer is unaware of the reason the employee is taking the medication.
EEOC example #2: An employer that refuses to hire someone with a facial tic regards the individual as having a disability, even if the employer does not know that the facial tic is caused by Tourette's Syndrome.
Important: The "regarded as" provision is not triggered when an employer:
asks whether an employee needs a reasonable accommodation;
asks an employee for medical information as part of the reasonable accommodation interactive process when the disability or need for accommodation is not obvious; or
seeks medical information to determine whether an individual poses a direct safety threat.
While this definition of "regarded as" opens up the courtroom door for more claims by employees, two stipulations prevent that door from being opened as wide as you might fear.
Impairments that are "transitory and minor" cannot form the basis of a "regarded as" claim. A transitory impairment is one with an actual or expected duration of six months or less.
Employers do not have to provide reasonable accommodations to employees who are "regarded as" disabled, unless those persons satisfy another part of the definition of a disability, i.e., have a physical or mental impairment that substantially limits one or more major life activities or a record of such an impairment. The 3rd, 10th, and 11th Circuits had all previously ruled that employers are required to provide reasonable accommodations for employees who are regarded as disabled under the ADA.
Mitigating Measures
In Sutton, the Supreme Court interpreted the ADA to require the consideration of mitigating measures when determining whether an individual has a protected disability. The ADAAA nullified this, stating 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 such as:
medication, medical supplies, equipment, or appliances; low-vision devices; prosthetics, including limbs and devices; hearing aids and cochlear implants or other implantable hearing devices; mobility devices; or oxygen therapy equipment and supplies;
use of assistive technology;
reasonable accommodations or auxiliary aids or services; or
learned behavioral or adaptive neurological modifications.
The proposed regulations add to this list surgical interventions that do not permanently eliminate an impairment.
Simply put, if an employee's condition would qualify as a disability without such aids, consider the person to have a protected disability. There is one exception, however, for ordinary eyeglasses or contact lenses.
EEOC example: If the only visual loss an individual experiences affects the ability to see well enough to read, and the individual's ordinary reading glasses are intended to completely correct for this visual loss, the ameliorative effects of using the reading glasses must be considered in determining whether the individual is substantially limited in seeing.
Consistent with its special treatment of corrective lenses, the ADAAA prohibits employers from using qualification standards, employment tests, and other selection criteria based on an individual's uncorrected vision, unless the standard, test, or other selection criteria, as used by the employer, is shown to be job-related for the position in question and consistent with business necessity. In most situations, individuals required to take a vision test must be permitted to use their corrective lenses.
Reverse Discrimination
The ADAAA explicitly states that a reverse discrimination claim is not actionable under the ADA. Therefore, an individual without a disability cannot succeed based on a claim that they were discriminated against because of their lack of a disability.
Recommended Actions
Employers are expected to shift their focus away from determining whether an employee has a protected disability and towards ensuring that the company has adequately engaged in the interactive and accommodation processes. So consider making reasonable accommodation the cornerstone of your disability policy henceforth, and prepare to engage in the interactive process much more often than in the past.
Remember, just because you engage in the interactive process, doesn't mean you are automatically bound to offer an employee an accommodation. Accommodations only need to be offered when reasonable. Unreasonable accommodations are those that pose an undue hardship on the organization, create a direct health or safety threat, or fail to help the employee successfully perform their essential job functions at the same level as employees without disabilities.
In addition to shifting focus, employers need to:
Keep abreast of the status of the proposed regulations, as well as any new cases that are brought under the law.
Update policies and procedures to reflect the changes made by the ADAAA. Watch out for references to "major life activities," "substantially limits," and "regarded as," since the meaning of each of these terms has changed.
Refrain from using qualification standards, employment tests, or other selection criteria based on an individual's uncorrected vision, unless it is job-related and consistent with business necessity. Also, remove any references to or requirements regarding "mitigating measures" from disability policies (the only exceptions being for ordinary eyeglasses or contact lenses).
Examine existing ADA documentation. For example, documentation that asks a medical practitioner to assess an employee's ability to perform essential job functions should note that mitigating measures are not to be considered.
Review job descriptions to ensure that those listed as essential functions are truly job-related and consistent with business necessity. Job descriptions are a good starting point for performing an individualized assessment of an individual's ability to perform essential functions, with or without accommodation.
Educate all management personnel about the ADAAA and its accompanying regulatory changes.
Advise all managers and supervisors to consult with HR whenever an employee requests an accommodation. Stress that it's imperative that they don't immediately refuse the request or retaliate in any manner against the individual for making the request in the first place. Also, encourage management personnel to share with HR any alternative accommodation ideas they might have.
Reconsider past accommodation requests from current employees who were denied accommodation because the company determined that the employee's impairment did not satisfy the original ADA's definition of a "disability."
Related Topic(s): Discrimination/ADA- Americans with Disabilities Act
