More than two years after the ADA Amendments Act (ADAAA) went into effect, the Equal Employment Opportunity Commission (EEOC) has finalized regulations interpreting the law’s requirements. For the most part, the final regulations provide exactly the type of comprehensive guidance employers were hoping for. In any event, they are a dramatic departure from (and an improvement over) the proposed regulations the EEOC issued in September 2009.
Let’s look at the regulations’ key provisions and what they mean for employers.
No More Categorical Disabilities
Perhaps the biggest change is that the final regulations reject the proposed regulations’ approach of listing certain impairments that would “consistently” qualify as disabilities under the Americans with Disabilities Act (ADA). In the nearly two years since the proposed regulations were issued, those impairments had come to be referred to as “categorical” or “per se” disabilities. The approach was roundly criticized as eliminating the traditional method of assessing whether an impairment was disabling based on its effect on the individual rather than on the mere fact of a diagnosis.
While the final regulations no longer state that certain impairments will consistently be considered disabilities, they do still include a strong presumption regarding certain impairments. The EEOC revives the individualized assessment approach but also lists a number of impairments that usually will be considered disabilities as defined by the ADA. Examples include deafness, blindness, intellectual disabilities and autism, partially or completely missing limbs, mobility impairments requiring the use of a wheelchair, cancer, diabetes, HIV, multiple sclerosis, muscular dystrophy, cerebral palsy, epilepsy, and a variety of serious mental disorders.
The regulations explain that given their inherent nature, these impairments will (1) virtually always impose a substantial limitation on a major life activity and (2) require an individualized assessment that is “particularly simple and straightforward.”
Audio Conference – “Sweeping New ADA Regulations in Place: What Employers MUST Do to Comply,” with attorneys Jonathan Mook of DiMuroGinsberg and Burton Fishman of Fortney Scott
Better Guidance on “Substantial Limitation”
Although the ADAAA instructed the EEOC to redefine the term “substantially limits,” the proposed regulations did little more than say what the term didn’t mean. The final regulations, however, provide some very helpful rules of construction on this issue. In determining whether an individual is substantially limited in a major life activity, employers may compare them to “most people in the general population” in the following respects:
- the condition under which they perform the major life activity;
- the manner in which they perform the major life activity;
- how long it takes them to perform the major life activity (and how long they are able to perform it);
- the difficulty, effort, or time required to perform a major life activity;
- any pain experienced when performing a major life activity; and
- any adverse effects of mitigating measures (such as side effects of medication).
On the other hand, employers are instructed to focus on the extent to which an impairment limits a major life activity, not on what outcomes an individual can achieve. For example, the fact that someone achieves a high level of academic success doesn’t necessarily negate a determination that he suffers from an intellectual disability.
Employers’ ADA Compliance Virtual Summit, March 31, 2011, featuring attorneys Jonathan Mook of DiMuroGinsberg and Audra Hamilton of Glass Wilkin and co-author of the ADA Compliance Manual.
Explanation of Transitory and Minor Impairments
The ADAAA dramatically expanded the circumstances in which employers may be liable under the “regarded as disabled” prong of the ADA’s definition of disability. In short, it removed the requirement that an employer perceive the employee as suffering from an impairment that substantially limits a major life activity. The only type of impairment that can’t form the basis for a regarded-as claim is one that is both transitory and minor.
The regulations provide no guidance on what is to be considered a “minor” condition other than to state that it is an objective inquiry. They do, however, provide the following guidelines:
- The transitory and minor standard is a defense that must be proved by the employer.
- The defense applies only if the impairment actually was transitory and minor, regardless of whether the employer believed it was transitory and minor.
- A condition is considered transitory if it lasts or is expected to last less than six months.
- The transitory nature of an impairment is not relevant to whether someone suffers from an actual disability. A person may be considered actually disabled even if the impairment lasts less than six months.
Wrapping It Up
The final regulations provide welcome clarification of the ADAAA’s requirements, and this alert merely scratches the surface. Look for more detailed analysis in the next issue of your Employment Law Letter and the Federal Employment Law Insider.