The final regulations issued by the EEOC implement the ADA Amendments Act of 2008 (the ADAAA) are effective tomorrow, May 24. The new regs feature 9 “Rules of Construction” to help employers determine whether an impairment substantially limits a major life activity.
The new rules reflect the ADAAA’s broader definition of “disability.” As a result, more individuals will have covered disabilities and would qualify for protection under the ADA.
For employers, this generally means shifting your approach from one that focuses on verifying that a person has an ADA disability, to one that uses the interactive process to see if there’s an effective accommodation that will allow an employee to perform the essential functions of his or her job.
According to the EEOC, the primary focus in ADA cases should be whether employers have complied with their obligations under the ADA and whether discrimination has occurred, not whether the individual meets the definition of disability. Determining whether an individual meets the definition of disability under the ADA “should not demand extensive analysis.”
Rules of Construction
That said, the regulations provide nine “rules of construction” that must be applied to determine whether an impairment substantially limits a major life activity. The regulations clarify that this analysis is not relevant when determining coverage under the “regarded as” prong of the disability definition (an impairment isn’t required to substantially limit a major life activity to be covered as a “regarded as” disability).
Rule 1. The term “substantially limits” shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. “Substantially limits” is not meant to be a demanding standard.
Rule 2. 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. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. Nonetheless, not every impairment will constitute a disability within the meaning of this section.
The EEOC noted that “substantially limits” is intended to be a lower threshold than “prevents” or “severely or significantly restricts” as prior Supreme Court decisions and EEOC regulations had defined the term.
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Rule 3. The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual’s impairment substantially limits a major life activity. Accordingly, the threshold issue of whether an impairment “substantially limits” a major life activity should not demand extensive analysis.
Rule 4. The determination of whether an impairment substantially limits a major life activity requires an individualized assessment. However, in making this assessment, the term “substantially limits” must be interpreted and applied to require a degree of functional limitation that is lower than the standard for “substantially limits” applied prior to the ADAAA.
Rule 5. The comparison of an individual’s performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical analysis. The regulations, however, do not prohibit the presentation of scientific, medical, or statistical evidence to make such a comparison where appropriate.
Rule 6. The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures. However, the ameliorative effects of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity.
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Under the amended ADA, employers cannot consider the ameliorative effects of mitigating measures (i.e., medication or a device that improves an impairment) when determining whether an impairment is a disability. For example, an employer may not consider an individual’s use of insulin to control his diabetes when determining whether the diabetes substantially limits the major life activity of eating.
“Non-ameliorative effects.” According to the EEOC’s interpretive guidance, non-ameliorative effects may be considered in determining whether an impairment is substantially limiting. Non-ameliorative effects include negative side effects of medicine, burdens associated with following a particular treatment regimen, and complications that arise from surgery.
Got it? More rules in tomorrow’s Advisor, plus an introduction to a helpful CD-based collection of pre-written job descriptions.
It’s easy to get caught up in the nit-picky details of the ADAAA, but you can maintain your sanity by defaulting to a focus on accommodations rather than the technical definition of “disability.” You’ll never go wrong by accommodating someone who may not technically qualify as “disabled” under the ADAAA, so long as you treat all similarly situated employees the same way.