Is Every Employee Disabled?

By Michael E. Barnsback

That was the question we received at the conclusion of the ADA Compliance Virtual Summit, which I conducted with Audra Hamilton on June 15, 2011. The question was reasonable after conference participants learned that the Equal Employment Opportunity Commission’s (EEOC) new regulations emphasize that the focus of the Americans with Disabilities Act (ADA) is no longer whether an individual is “disabled” under the statute but whether the employer engaged in discrimination.

EEOC Issues Final Regs for ADAAA

The new EEOC regulations interpreting the ADA Amendments Act (ADAAA) became effective on May 24. Consistent with the ADAAA, the new regulations significantly broadened the definition of “disability” under the Act. The regulations address a number of key issues, including: (1) defining “major life activities,” (2) interpreting what constitutes a “substantial limitation” on a major life activity, (3) clarifying the effect of an individual’s use of mitigating measures, (4) and implementing the revised “regarded as” portion of the definition.

You Can’t See Most of the New Major Life Activities. The ADAAA contains a nonexclusive list of “major life activities,” including seeing, hearing, talking, standing, breathing, and working. The new regulations add to that list sitting, reaching, and interacting with others. In addition to those observable activities, the ADAAA expanded the list to include “bodily functions” such as the functions of the immune system, normal cell growth, and functions of the neurological, respiratory, circulatory, endocrine, and reproductive systems. The new regulations set forth additional bodily functions, including functions of the special sense organs and the skin, genitourinary, muscular, skeletal, cardiovascular, and hemic systems.

The significance of expanding the definition of “disability” to include bodily functions is that now an individual may be disabled even if he isn’t observably limited in his activities.

“Substantially Limits” Should Be Broadly Construed. The EEOC regulations provide nine rules of construction to apply when determining whether an impairment substantially limits a major life activity. The rules can be easily summarized as favoring coverage to the maximum extent permitted by the ADA. One interesting clarification is that you should view an individual’s impairment as compared to “most people” in the population and that the impairment need not prevent or significantly restrict him from performing a major life activity.

The Level of Proof Required for an Employee to Make a Claim Has Been Significantly Reduced. According to the regulations, there is no need for medical, scientific, or statistical analysis in determining whether an impairment is substantially limiting.

Mitigating Measures Don’t Matter. Before the ADAAA and the new implementing regulations were enacted, the case law held that mitigating measures such as medication should be considered in determining whether an impairment substantially limits a major life activity. Now, mitigating measures are not to be considered. Even if an individual has mitigating measures available to him but fails to take advantage of them, that fact “has no bearing” on the analysis.

Any Adverse Employment Action Can Lead To a “Regarded as Disabled” Claim. Under the ADAAA and the new regulations, there is no need to show that an employer considered an employee to have a substantially limiting impairment in order to establish a regarded-as-disabled claim. Any adverse action based on any actual or perceived impairment, regardless of whether the impairment is substantially limiting, is all that’s required to establish a claim for ADA discrimination. The only caveat is that an impairment that’s minor and transitory (lasting six months or less) will not be subject to a regarded-as-disabled claim.

The Breadth of the New “Regarded as Disabled” Definition Cannot Be Overemphasized. In fact, in the interpretive guidance attached as an appendix to the regulations, the EEOC takes the position that unless “reasonable accommodation” is an issue, it isn’t necessary to determine whether an individual is substantially limited in a major life activity to establish a claim for discrimination under the ADA. Federal Register, Vol. 76, No. 58, p. 16991.

The Way I See It . . .

To answer the initial question, yes, every employee is potentially disabled. It’s clear that the EEOC is laser-focused on the actions of employers, not on whether employees are actually disabled. Given this clear guidance, you should assume that any employee with an impairment, whether you can observe the impairment or not, should be considered disabled under the ADA. Your focus shouldn’t be on whether an employee is disabled but instead on whether she is qualified to perform the essential functions of the position and, if not, whether there are reasonable accommodations that would allow her to perform the essential functions.

The end result is that the number of individuals considered disabled under the ADA will skyrocket. You don’t have to take my word for it. The EEOC estimated that “the number of labor force participants whose coverage is clarified under the ADA is approximately 38.4 million.” The EEOC further estimates that the annual cost of compliance for employers in terms of accommodations alone will be between $60 million and $183 million. That estimate doesn’t include the increased costs of associated litigation.

Now that every employee is disabled, you need to be prepared ― both procedurally and financially ― to handle the huge increase in disability issues that are anticipated to arise under the ADAAA and the new regulations.

Michael E. Barnsback, a partner at DiMuroGinsberg PC, represents Virginia employers in all aspects of employment law. He is an editor and regular contributor to Virginia Employment Law Letter. You can reach him at (703) 844-4333 or mbarnsback@dimuro.com.