New ADAAA Regulations Increase Coverage and Risk

April 7, 2011

On March 24, 2011, the U.S. Equal Employment Opportunity Commission (EEOC) issued new regulations governing the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). Employers now have fewer than 60 days until the new regulations become effective on May 24, 2011. The regulations greatly broaden the definition of “disability” under the ADAAA, making clear that to “substantially” limit a major life activity, an impairment need not be “significantly” or “severely” limiting, as was previously established by Supreme Court precedent.

ADAAA: The Basics

The ADAAA protects, among other persons, “qualified individuals with a disability” from unlawful discrimination or harassment. It further requires employers to provide “reasonable accommodations” to such employees to enable them to perform essential job functions, with various exceptions.

The statute sets forth three main prongs under which an individual may be covered by the ADAAA. An applicant or employee may:

  1. Have a physical or mental impairment that substantially limits one or more major life activities;
  2. Have a record (or past history) of such an impairment; or
  3. Be regarded as having a disability.

The ADAAA also protects applicants and employees if they are victims of discrimination because of family, business, social or other relationships with a disabled individual.

Neither the ADAAA, which governs acts alleged to have occurred on or after Jan. 1, 2009, nor the new regulations change the original statutory definition of disability. Instead, the ADAAA added language specifically overturning several Supreme Court cases that substantially narrowed the number of individuals who fell into each of the three main coverage categories above. The new regulations, in turn, provide rules of construction for courts to employ that should guide the “individualized assessment” of whether an applicant or employee has an impairment that substantially limits a major life activity. The net effect of the ADAAA and the regulations is to make it easier for individuals who have mental or physical impairments to qualify for protection under the ADAAA.

Rules of Construction

The most significant addition in the new regulations is the adoption of nine rules of construction for courts to use when interpreting the ADAAA.

  1. The term “substantially limits” should be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADAAA, and is not meant to be a demanding standard.
  2. An impairment need not prevent, or significantly or severely restrict, an individual from performing a major life activity in order to be considered “substantially limiting.” Nonetheless, not every impairment will constitute a disability.
  3. A substantial limitation should not be the primary object of attention; the regulations make clear the courts are not to get bogged down in whether an impairment is substantially limiting.
  4. “Substantially limits” should now be interpreted and applied using an individualized assessment that is broader than the standard applied prior to the ADAAA.
  5. An impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. This comparison usually will not require scientific, medical or statistical analysis.
  6. Except in the cases of ordinary eyeglasses or contact lenses, the determination of whether an impairment substantially limits a major life activity is to be made without regard to the ameliorative (or positive) effects of mitigating measures. This is a significant departure from the analysis before the amendments.
  7. An impairment that is episodic, in remission, or could recur is a disability if it would substantially limit a major life activity when active. For example, cancer that has responded to treatment is nonetheless still a disability.
  8. An impairment that substantially limits one major life activity need not substantially limit other major life activities in order to be considered a substantially limiting impairment.
  9. The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting. However, short-term illnesses lasting only a few days or weeks are likely not substantially limiting.

Other Significant Changes

  • “Regarded As” Having a Disability Redefined In addition to the changes above, the ADAAA and the regulations expand who is covered under the “regarded as” prong of the disability definition. The regulations now make clear that the concepts of “major life activities” and “substantially limits” are not relevant in evaluating a claim that an individual was “regarded as” disabled. This analysis is now solely confined to whether the employer treated the individual differently as a result of his or her assumed impairment.
  • Predictable Assessments The regulations repeatedly refer to employer’s obligations to engage in an individualized assessment of each employee. However, the regulations ironically provide that some impairments involve “predictable assessments” that, in “virtually all cases,” will result in a finding that the employee qualifies for protection under the ADAAA. For example, according to the regulations, such conditions include deafness, blindness, intellectual disabilities, partially or completely missing limbs or mobility impairments requiring the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.

What Do the ADAAA Regulations Mean for Employers?

The primary impact of the new regulations is that employers’ ability to defend disability discrimination claims will no longer focus as intently on whether an employee is covered under the ADAAA. Instead, cases will focus on whether the employee and employer properly engaged in the interactive process, whether a reasonable accommodation was provided, and if not, why. Employers will also continue to maintain the burden of proving “undue hardship” to proposed accommodations.

As a best practice, employers should revisit their disability-related policies and procedures to ensure they adequately address the new standards. Further, all managers and human resources professionals need to be trained on the ADAAA and the new regulations to ensure understanding and compliance with the new regulatory regime, being particularly mindful of the employer’s obligation to engage in the interactive process to determine what, if any, accommodations the employer can provide.

For further inquiries regarding the ADAAA and potential updates to policies and procedures to address the final regulations, please contact the authors or any other member of McGuireWoods’ Labor and Employment Group.