New rules lower the threshold, allowing more people to qualify as disabled.
March 24, 2011, the Equal Employment Opportunity Commission (“EEOC”) issued
final regulations implementing the Americans with Disabilities Act Amendments
Act (“ADAAA”). The ADAAA, which became effective January 1, 2009, rejected a
series of Supreme Court decisions that had narrowly construed the term “disability.”
Although the ADAAA did not redefine the meaning of disability, it expanded the
number of people who could qualify as being disabled by, among other things,
lowering the threshold for establishing that an impairment “substantially
limits” a major life activity.
EEOC regulations confirm that the purpose of the ADAAA is “to make it easier
for people with disabilities to obtain protection under the ADA.” To this end,
the definition of “disability” is to be “construed broadly in favor of
expansive coverage,” and “[t]he question of whether an individual meets the
definition of disability … should not demand extensive analysis.” The key
new approach to the concept of “substantially limits.” In a marked departure
from prior case law, which narrowly interpreted the ADA, the regulations
provide that “[a]n impairment need not prevent, or significantly or severely
restrict, the individual from performing a major life activity in order to be
considered substantially limiting.” In assessing whether an impairment
substantially limits a major life activity, not only can episodic impairments
count as disabilities, but mitigating measures other than eyeglasses and
contact lenses cannot be taken into account.
conditions trigger the status of disability in “virtually all cases.”
Generally, an individualized assessment is required to determine whether an
impairment substantially limits a major life activity. However, the regulations
acknowledge that certain impairments will, “in virtually all cases,”
substantially limit an individual in a major life activity. The list of such
conditions includes autism, cancer, epilepsy, HIV infection, bipolar disorder,
post-traumatic stress disorder, obsessive compulsive disorder and diabetes.
expanded definition of “major life activity.” The regulations broaden the scope
of the term “major life activity” in three significant ways. First, they add
sitting, reaching, bending, lifting and interacting with others to the ADAAA’s
non-exhaustive list of activities. Second, the regulations now define “major
life activity” to include the operation of a “major bodily function,” as well
as the operation of a specific organ within a major bodily system. The
regulations add special sense organs and skin, genitourinary, cardiovascular,
hemic, lymphatic and musculoskeletal to the list of major bodily functions.
Finally, in declaring that a “major life activity” need not be of “central
importance to daily life,” the regulations expressly reject the Supreme Court’s
ruling in Toyota Motor Manufacturing v. Williams, 534 U.S. 184 (2002).
“regarded as” disabled is now easier to meet. In bringing a disability claim
under the “regarded as” prong, a plaintiff now need only establish that the
employer believed the employee had an impairment and on that basis
discriminated against the plaintiff. The regulations, however, do provide
employers with an affirmative defense if the employer can show that the
impairment is objectively transitory and minor. In addition, the regulations
provide that employers have no duty to provide reasonable accommodations to
those employees who meet the definition of disability solely because they are
regarded as disabled.
the clarity the regulations provide with respect to the ADAAA, employers should
take this opportunity to further review their disability-related policies to
ensure compliance with the ADAAA. In addition, employers should be prepared to
receive more accommodation requests from employees. In this regard, employers
should train all managers, supervisors and Human Resources staff on company
disability practices and how to handle accommodation requests. Further, in
order to facilitate the accommodation process, employers should review and
update job descriptions to ensure that all of the essential functions of a job
are included. Keep in mind, however, that an employee seeking reasonable
accommodation is still required to provide supporting documents from a health
care professional describing the impairment and the particular accompanying
Hubbard’s Labor and Employment Department has extensive experience counseling employers
on disability issues and would look forward to working with you to ensure
compliance with the ADAAA and its implementing regulations.