EEOC Proposes ADA Regulations Which Will Implement the ADA Amendments’ Significant Expansion of the ADA
By: Lawrence P. Postol
Vice President of Legislative Affairs
On September 23, 2009, the EEOC published proposed new regulations under the Americans with Disabilities Act Amendments, which Amendments became effective on January 1, 2009 (ADAAA). The EEOC Notice of Proposed Rulemaking echoes the ADAAA in providing that “[t]he definition of disability I this part shall be construed broadly, to the maximum extent permitted by the terms of the ADA.” The EEOC is seeking public comment on these proposed regulations by November 23, 2009.
A New Definition of “Substantially Limits”
The ADA provides that an impairment is a disability if it “substantially limits” an individual’s ability to perform a major life activity. The term “substantially limits” previously had been interpreted as “significantly restricts,” which resulted in many ADA claims being dismissed for failure to show a qualifying disability. The ADAAA expressly instructed EEOC to issue new regulations defining “substantially limits” more broadly.
Accordingly, proposed rule 1630.2(j)(2)(i) describes the ADAAA as shifting the “focus of an ADA case” to the question of “whether discrimination occurred, not on whether an individual meets the definition of ‘disability’.” Proposed rule 1630.2(j)(2)(iv) suggests that the question of whether an individual is “substantially limited” in a major life activity “should not require extensive analysis” and “often may be made using a common-sense standard, without resorting to scientific or medical evidence.” Likewise, proposed rule 1630.2(j)(2)(vi) states that the relevant inquiry is “how a major life activity is substantially limited, not on what an individual can do in spite of an impairment.”
Proposed rule 1630(2)(j)(2)(ii) further notes that “an individual whose impairment substantially limits a major life activity need not also demonstrate a limitation in the ability to perform activities of central importance to daily life.” This follows from Congress’ repudiation of several U.S. Supreme Court decisions under the ADA.
Additionally, proposed regulation 1630.2(j)(2)(iii) and (iv) provide that where an impairment substantially limits one major life activity, it need not also limit other major life activities to qualify as a disability, and that cases holding otherwise are contrary to the ADA as amended. For example, an individual with diabetes will be considered disabled based upon the substantial limitation of his endocrine system, and an individual with epilepsy will be considered disabled based o the substantial limitation of brain function (or, during a seizure, of other major life activities). An individual “whose normal cell growth is substantially limited due to cancer” will not be required to show a substantial limitation of another major life activity.
Proposed rule 1630.2(j)(2)(v) would seemingly foreclose the argument that an impairment is not substantially limiting solely because it is “temporary”, as it rejects any “duration minimum” and states that “an impairment may substantially limit a major life activity even if it lasts, or is expected to last, for fewer than six months.” Conversely, proposed rule 1630.2(j)(8) preserves the understanding that “temporary, non-chronic impairments of short duration with little or no residual effects . . . usually will not substantially limit a major life activity.”
Proposed rule 1630.2(j)(7) changes the test for the major life activity of working. Whereas, the old regulations required that a disability preclude a person from a “class of job” in order for the activity of working to be substantially limited, the new proposed regulation only looks at whether a person is precluded from a “type of job,” and seems to suggest preclusion from even a narrow category of jobs, e.g. truck driver, is enough to trigger the protection of the ADA.
Expansion of “Major Life Activities” and Addition of “Major Bodily Functions”
The ADAAA itself added several new activities to the non-exhaustive list of major life activities covered by the ADA, including “sleeping, concentrating, thinking, [and] communicating.” The ADAAA also expanded the concept of “major life activities” to include “the operation of major bodily functions” such as the “immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” The proposed regulations mirror these changes at sections 1630.2(i)(1) and (2), but add three more major life activities –sitting, reaching, and interacting with others – plus the “major bodily functions” of the special sense organs, skin, genitourinary, cardiovascular, hemic, lymphatic, and musculoskeletal systems as “further illustrative examples.”
In addition, rule 1630.2(j)(5) lists a number of conditions that “will consistently meet the definition of disability” based on “certain characteristics associated with these impairments,” and includes in this list autism, cancer, cerebral palsy, diabetes, epilepsy, HIV and AIDS, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.
Mitigating Measures
Proposed regulation 1630.2(j)(3) reflects the ADAAA rejection of numerous Supreme Court and federal appellate court decisions holding that “mitigating measures” (e.g., medications, prosthetics, corrective surgery, hearing aids, and mobility devices) should be considered in assessing whether an individual is “disabled” under the ADA. Going forward, impairments are to be evaluated in their unmitigated state when determining whether the individual is substantially limited in a major life activity, except that ordinary eyeglasses and contact lenses may be considered.
Episodic Impairments and Impairments in Remission
The ADAAA extended the ADA to cover individuals with episodic impairments or conditions in remission, if the impairment would substantially limit a major life activity in its active state. Proposed rule 1630.2(j)(4) provides a non-exhaustive list of examples, including “epilepsy, hypertension, multiple sclerosis, asthma, cancer, and psychiatric disabilities such as depression, bipolar disorder, and post-traumatic stress disorder.”
“Regarded As” Analysis – The Perceived Disability No Longer Needs To Substantially Limit A Major Life Function
The ADAAA significantly expanded coverage for individuals “regarded as disabled” by prohibiting discrimination based on the employer’s alleged perception of a mental or physical impairment, even if that impairment is not perceived as an actual disability. This means, for example, that a minor lifting restriction which might not rise to the level of an actual disability because it does not significantly limit a major life activity, but nonetheless it can be the basis of a “regarded as” claim.
Proposed rule 1630.2(l) states that proof that an individual was denied employment because of an impairment is sufficient to establish coverage under the ADA, even without “evidence that the employer believed the individual was substantially limited in any major life activity.” The proposed rule offers the example of an individual who is not hired because he takes anti-seizure medication, even if the employer does not know why the individual is taking such medication. At the same time, the proposed rule excludes “minor and transitory impairments” with an actual or expected duration of less than six months, distinguishing between the examples of an individual who cannot type for three weeks due to a sprained wrist (transitory and minor) and an individual believed to have carpal tunnel syndrome (not transitory and minor).
Like the ADAAA itself, the proposed regulations state that there is no duty to provide reasonable accommodations to those “regarded as” having a disability. However, an employer can not discriminate based on a perceived disability. Thus, if an employee alleges he suffered an adverse employment action (e.g. termination of employment, demotion, failure to receive a raise) due to any physical or mental condition, that is enough for him to allege discrimination due to a perceived disability, and his case can proceed to court, even if the physical or mental condition does not meet the definition of an actual disability.
The ADAAA is designed to greatly broaden the scope of who is protected by the ADA, and thus employers will need to be particularly careful on how they interact with employees with physical or mental limitations.
If you have any questions about the information in this article, you may e-mail Mr. Postol at Lpostol@seyfarth.com or call him at 202-828-5385.
