EEOC Publishes Final Regulations Under the ADA Amendments Act of 2008

Pursuant to the ADA Amendments Act of 2008 (the Amendments Act), the United States Equal Employment Opportunity Commission (EEOC) has published final regulations implementing the amendments to the Americans with Disabilities Act (ADA).  The EEOC published these final regulations (along with a revised interpretative guidance in the appendix) on March 25, 2011 after having considered more than 600 public comments submitted in response to the September 2009 proposed rule.  The final regulations can be found at 29 C.F.R. 1630 and will become effective on May 24, 2011.

Regulations Expand ADA's Coverage

The ADA covers individuals with a "disability," which is defined as:  (1) "a physical or mental impairment that substantially limits one or more of the major life activities of such individual"; (2) "a record of such an impairment"; or (3) "being regarded as having such an impairment." 

Courts had previously construed this definition narrowly.  In 2008, Congress amended the ADA to construe the definition of disability more broadly.  The amended ADA retains the same definition of "disability" as before, but changes the way these statutory terms are to be interpreted.  The EEOC's final regulations are intended to implement these changes.

The final regulations significantly broaden the definition of "disability" under the ADA.  As a result, many more people will be found to have a disability under the final regulations and amended ADA than has been the case under the prior version of the regulations and the ADA.  In the final regulations, the EEOC advises employers that the focus in an ADA case should be on whether the employer has complied with its obligations, not whether the individual meets the definition of disability.

"Actual Disability" Prong

The final regulations provide nine rules of construction to be used in determining whether an employee's impairment "substantially limits" the individual in a major life activity:

1. "Substantially limits" is to be construed broadly.
2. An "impairment" is a disability when it "substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population." 
3. Whether an impairment "substantially limits" a major life activity is a threshold issue that should not require extensive analysis.
4. This determination demands an individualized assessment which requires a degree of functional limitation lower than the standard used under the original version of the ADA.
5. Scientific, medical, or statistical evidence is not required to establish a limitation on a major life activity.
6. The ameliorative effects of any mitigating measures, except those from ordinary eyeglasses or contact lenses, are not to be taken into account in analyzing whether an impairment "substantially limits" a major life activity.
7. "An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active."
8. An impairment does not have to "substantially limit" more than one major life activity to meet this definition.
9. An impairment lasting fewer than six months can still be "substantially limiting."

The regulations provide a non-exhaustive list of impairments that will, "in virtually all cases," result in a finding that the impairment substantially limits a major life activity.  This list, which some commentators have referred to as a "per se list" of disabilities, includes:  deafness, blindness, intellectual disability, missing limbs, mobility impairments, autism, cerebral palsy, diabetes, HIV, multiple sclerosis, muscular dystrophy, and psychiatric disorders such as major depression, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.

The final rule also expressly rejects the standard that the Supreme Court had used to determine whether an activity qualifies as a "major life activity" (i.e., that it be of "central importance to most people's daily lives").  However, the regulations do not provide a new standard.  Instead, the regulations provide a non-exhaustive list of major life activities, which include the operation of major bodily functions.

The final regulations also expressly reject the argument that a person with an impairment is not "substantially limited" in a major life activity if he attains success in that activity.  The final rule states that the "focus is on how a major life activity is substantially limited, and not on what outcomes an individual can achieve."  For example, a student with a learning disability who earns good grades may still be substantially limited in the major life activity of learning.

"Record of" Prong

The final regulations expressly provide that employers may sometimes need to provide a reasonable accommodation to an employee who would be considered disabled under the "record of" prong.  Previously, only those individuals with a current actual disability were entitled to accommodation.  The rule states that an employee who previously had an impairment that substantially limited a major life activity may now need leave or a schedule change to permit him to attend follow-up appointments with a health care provider.  This is a change in the law that may drastically expand the number of individuals who are entitled to receive reasonable accommodation under the ADA.

"Regarded As" Prong

Despite the expansive scope of the first two prongs of the disability definition, the "regarded as" prong provides even broader coverage.  According to the regulations, the "regarded as" prong should be "the primary means of establishing coverage in ADA cases that do not involve reasonable accommodation." 

An individual is "regarded as having such an impairment" if he is subjected to a prohibited action because of an actual or perceived physical or mental impairment, so long as the impairment is not transitory (i.e., less than six months) and minor.  Under this prong, it is not necessary for a plaintiff to show that the impairment "substantially limits" a major life activity or a record of such an impairment.  This is a significant expansion of the "regarded as" definition.  Previously, employers could argue that even though they may have known or believed an employee had an impairment, they did not regard the impairment to substantially limit the employee in a major life activity.  The final regulations make clear that this theory is no longer available in defending against "regarded as" claims under the ADA.  In other words, what has been nearly universally considered the chief criterion for a disability (i.e., substantial limitation of a major life activity) no longer even applies for a claim of discrimination due to a disability.

The final regulations also clarify that those individuals who are only "regarded as" having an impairment are not entitled to reasonable accommodation under the ADA.

Analysis

The final regulations make clear that, except in rare cases, employers should no longer question whether an individual with an impairment is "disabled" under the ADA.  When confronted by an employee (or applicant) with an impairment, an employer should presume that the employee is covered by the ADA. 

Employers have already experienced an increase in disability discrimination claims since the ADA was amended.  The final regulations will only increase the likelihood of litigation while making it more difficult for cases to be decided prior to trial.  As a result, it is critical for employers to educate and train managers and human resources personnel on (1) the rights afforded by the amended ADA and the final regulations, and (2) the steps that should be taken in making employment decisions so as to avoid claims of disability discrimination or failure to accommodate.