ADA Coverage Expanded

On March 25, the Equal Employment Opportunity Commission (EEOC) issued final rules implementing changes to the Americans With Disabilities Act (ADA) that expand the definition of disability and will make it easier for individuals seeking protection under the ADA to establish eligibility. Congress passed the ADA Amendments Act of 2008 (ADAAA) largely to counter Supreme Court rulings that had narrowly construed the definition of a covered disability. The changes to the law took effect on January 1, 2009, and the new rules become effective as of May 24, 2011.

Key Changes

Disability. Congress has expanded the definition of “disability” and thus broadened the scope of protection. Previously individuals with certain conditions such as epilepsy, diabetes, multiple sclerosis, major depression, and bipolar disorder did not meet the definition of disability, although the intent of Congress was for these individuals to be covered.

The new regulations define “disability” using a three-pronged approach:

1. A physical or mental impairment that substantially limits one or more major life activities (referred to as an “actual disability”).
2. A record of a physical or mental impairment that substantially limits a major life activity (“record of”).
3. When a covered entity takes an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory and minor (“regarded as”).

A person has to meet only one of the three prongs of the definition of disability to be eligible for protection. The regulations specify that an individual must be covered under the first or second prongs in order to qualify for reasonable accommodation. Employers do not need to provide accommodation to employees covered under the third prong only of the definition.

The basic rule for “regarded as” is as follows: “Regarded as” having a disability now means that the individual has been subjected to an action prohibited by the ADA as amended because of an actual or perceived impairment that is not both transitory and minor. It is no longer required that the employer perceive the applicant or employee as substantially limited in a major life activity to be protected.”

The EEOC makes an exception from “regarded as” coverage for transitory and minor impairments. “Transitory” is defined as a duration of six months or less. The EEOC refrained from defining “minor” in the new regulations.

Taking prohibited actions (e.g., failure to hire or promote, demotion, termination) may be brought under any of the definitions of disability, though it may be easier for individuals to claim coverage under the third, “regarded as” prong. Though taking prohibited actions due to an actual or perceived impairment does not establish liability, the employee must still be “qualified.”

The regulatory language of 1630.1(c)(4) states that 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 the individual meets the definition of disability. The question of whether an individual meets the definition of disability under this part should not demand extensive analysis.

Physical impairments. The regulations define “physical or mental impairment,” but the list is not exhaustive, and more conditions that are not on the list may exist. For example, it is noted that pregnancy per se is not an impairment, but pregnancy-related impairments are potentially covered. Likewise, advanced age is not considered an impairment, but conditions associated with age may be considered an impairment.

Substantial limitations. The only time that employers need to consider substantial limitations is in accommodation cases. The intent is for it to be relatively easy to determine if an impairment substantially limits an individual in a major life activity. Congress determined that the prior definition set too high a standard. Guidance for determining whether a disability substantially limits an individual in a major life activity is provided by nine rules of construction. The key points include:

• The standard of comparison is whether a disability substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.
• The comparison should not require “extensive analysis.”
• The determination should not take into account the ameliorative effects of mitigating measures or treatments (except for vision correction).
• An impairment that is episodic or in remission is considered a disability if it substantially limits a major life activity when active.
• There are a number of conditions that will virtually always result in coverage, such as deafness, blindness, cancer, epilepsy, multiple sclerosis, mobility impairments, and major depressive orders, among others.

It is important to note that an employer must have an interactive dialogue with an employee when he or she requests an accommodation.

Major life activities. Congress dramatically changed what constitutes “major life activities,” and provided a list of examples, including: seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, and bending, to name a few. The operation of major bodily functions was added to the list. This is anticipated to increase the number of impairments that will be considered disabilities under the first two prongs of the definition of disability. According to the new regulations, whether an activity is a “major life activity” is not determined by whether it is of “central importance to daily life.” Rather, in evaluating a major life activity, it is important to consider the condition, manner, and duration in which the individual performs the activity. Even if a person is disabled, in order to make a claim of discrimination or denial of reasonable accommodations, he or she still needs to be able to perform the essential functions of the job with or without accommodation.

Primary Impacts

As a result of the new regulations, more employees will be covered, and there will be more requests for accommodation, increased charges, and greater litigation. Cases will not be dismissed as often due to an individual not being deemed as covered under the law. While the accommodation process has not changed, and an employee still needs to be able to perform the essential functions of the job with or without accommodation, the requirement for medical evidence has been lowered. (Note: The ADA does not impact or change state workers’ compensation laws.)

Employers are encouraged to provide training on the new ADA regulations and review their current policies and procedures to ensure compliance. For more information, visit the EEOC Web site.

Nancy Maguire is a consultant to NACUBO; e-mail: nancy.maguire@nacubo.org.