Consultant • New York / Tri-State Area
Employment Practices Solutions, Inc.
lwaxman@EPSpros.com
The Equal Employment Opportunity Commission (EEOC) has issued its final regulations implementing the ADA Amendment Act of 2008 (ADAAA), and they became effective last month.* The ADAAA provides that the definition of disability must be interpreted in favor of “broad coverage,” and the EEOC regulations follow up on that theme by providing specific rules of construction for determining exactly what “broad coverage” really means. It is important to note that, while the ADAAA and the EEOC regulations significantly affect the determination of who is disabled, the definition of disability itself has remained the same: a disability is still defined as (i) a physical or mental impairment that substantially limits one or more major life activities, (ii) a record of such an impairment, or (iii) being regarded as having such a disability. The ADAAA and the EEOC regulations will likely result in more individuals falling under the protection of the ADA where they might not have been so protected in the past. At first glance, this sounds like it may be bad news for employers – then again, some clarity may be helpful, and the EEOC regulations definitely offer clarification. Maybe the new approach to determining ADA coverage will not only help individuals, but also help employers to understand who and what is covered without being overly burdensome.
What Do the EEOC Regulations Say?
Substantially Limits
Under the ADA, one definition of a disability is a physical or mental impairment that “substantially limits” one or more major life activities. What exactly constitutes a “substantial limitation” has been troubling for employers and individuals, and the EEOC has attempted to address this by providing that the term “substantially limits” is to be “construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA.” More specifically, according to the EEOC:• An impairment does not need to prevent or severely or significantly restrict a major life activity to be considered “substantially limiting”.
• The determination of whether an impairment “substantially limits” a major life activity must be made without regard to the effects of mitigating measures, such as medication or hearing aids, prosthetics, cochlear implants, mobility devices and other medical supplies or equipment (with the exception of “ordinary eyeglasses or contact lenses”).
• An impairment that is episodic or in remission is a disability if it would “substantially limit” a major life activity when active; however, episodic conditions that impose only minor limitations will not normally meet the definition of disability.
• A temporary or chronic impairment of a short duration, such as the flu, sprained joint or broken bone, will not normally be considered to substantially limit a major life activity.
• Some impairments should easily be concluded to be disabilities. Some examples are: epilepsy, diabetes, cancer, HIV infection, blindness, deafness, intellectual disabilities, autism, cerebral palsy, partially or completely missing limbs, mobility impairments requiring the use of a wheelchair, multiple sclerosis, muscular dystrophy, bipolar disorder, major depression, post-traumatic stress disorder, obsessive-compulsive disorder and schizophrenia.
Major Life Activities
To be covered under the ADA, the physical or mental impairment must substantially limit a “major life activity”. The courts have struggled with what this means, and the EEOC has responded by expanding the list of “major life activities”. Here are some examples of “major life activities”:• the operation of major bodily functions, including functions of the immune system, special sense organs and skin, normal cell growth, digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions.
• caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, working, sitting, reaching and interacting with others.
The EEOC regulations clarify that the list of major life activities and major bodily functions is meant to be non-exhaustive, and accordingly, many more activities may be covered in the future.
Regarded As
The ADAAA and the EEOC regulations make it easier for individuals to establish coverage under the “regarded as” part of the definition of “disability”. The EEOC regulations emphasize that coverage is to be determined by how a person has been treated because of a physical or mental impairment (that is not transitory and minor), rather than on what an employer may have believed about the nature of the person's impairment. The regulations clarify, however, that an individual must have an actual disability or a record of disability in order to qualify for a reasonable accommodation. In other words, an individual does not qualify for an accommodation simply because they are regarded as disabled.What Do the Regulations Mean for Employers?
The ADAAA and EEOC regulations make it clear that a case brought under the ADA should focus on whether the individual has suffered any discrimination, and not on whether the individual has a disability. Accordingly, Employers must look closely at the other provisions of the ADA – i.e., whether or not the individual is able to perform the essential functions of the position with or without a reasonable accommodation. While it may seem as though the ADAAA and the EEOC regulations favor employees and applicants because more individuals will be deemed “disabled”, there is still a benefit to employers because the rules are much clearer now.Under the new law and accompanying regulations, employers are now able to turn their efforts towards defining the requirements of the position and assessing the qualifications of the individual, and, as is the case with all legally protected classes, toward preventing illegal discrimination. As with other laws aimed at preventing illegal discrimination on the basis of, for example, sex, age, religion, race or color, employers who look at the ability to perform a job and make decisions based on whether or not an individual is able to meet the requirements of the position will likely avoid trouble with the law. Imagine if employers had to focus their efforts in every instance on what the sex, age, religion, race or color of the individual was in reality, rather than on the equal treatment of all individuals at work. Of course employers will still have to consider reasonable accommodations at times, but that is a work-related inquiry, and if done properly it should help to avoid liability for employers. Employers should make sure that its managers and human resource professionals understand the importance of determining whether or not an individual is qualified and whether an accommodation should be considered.
The changes in the ADA analysis bring the inquiry more in line with other relevant statutes. While more individuals may be covered, the focus will be on whether the employer has acted properly in its treatment of these individuals in accordance with the law. The ADAAA and EEOC regulations have made the employer’s obligations much clearer than they were in the past, and that is a good thing for employers and individuals alike.
*The ADAAA became effective Jan. 1, 2009 and applies to discriminatory acts occurring after Jan. 1, 2009. The ADAAA regulations became effective on May 24, 2011.
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