Congress Speaks, EEOC Listens - Proposed Regulations Reflect ADAAA’s Intent

By Cheyanne K. Mahoney

In an earlier piece entitled "The ADA Amendments Act of 2008 - What Every Employer Should Know," we discussed the major changes enacted by the Americans with Disabilities Act ("ADA") Amendments Act (the "ADAAA") and the implications of those changes for employers. The Equal Employment Opportunity Commission ("EEOC") released proposed regulations on September 23, 2009 implementing the ADAAA, pursuant to Congress' instructions.¹ The proposed regulations, which will become final following a 60-day public comment and revision period, provide guidance and clarification for several major changes under the ADAAA. This article examines the proposed regulations and discusses what employers can expect moving forward.

I.   Definition of Disability

Neither the ADAAA nor the proposed regulations change the ADA's literal definition of "disability" - a physical or mental impairment that substantially limits one or more major life activities; a record of such impairment; or being regarded as having such impairment.² However, the proposed regulations follow the ADAAA in broadening the meaning of "substantially limits," "major life activities," and "regarded as," which in turn expands the definition of "disability."³

II.   Major Life Activities

Following the ADAAA, the proposed regulations define "major life activities" as those basic functions, including major bodily functions, that most people in the general population can perform with little or no difficulty.⁴ The proposed regulations add "sitting," "reaching" and "interacting with others" to the ADAAA's non-exhaustive list of "major life activities" and "hemic, lymphatic, and musculoskeletal" functions to the non-exhaustive list of major bodily functions.⁵ The proposed regulations also add to the ADAAA's non-exhaustive list of examples of impairments that impact major bodily functions - kidney disease (impacts bladder function), cancer (impacts normal cell growth), and epilepsy (impacts neurological functions).⁶

III.   Substantially Limited

Consistent with the language of the ADAAA, the proposed regulations provide that an impairment no longer needs to prevent, or significantly or severely restrict, an individual's ability to perform a major life activity to be considered "substantially limiting."⁷ Moreover, under the proposed regulations, the "condition, manner or duration" of the impairment no longer has any bearing on whether the condition is considered "substantially limiting."⁸ An impairment is now a disability so long as it substantially limits a major life activity as compared to most people in the general population.⁹ The ADAAA and legislative history are silent as to what exactly "substantially limits" means, but the proposed regulations provide six rules of construction on this point:

1. The focus of ADA cases should be on (a) whether discrimination occurred, not on whether the individual meets the definition of "disability;" (b) whether an impairment that substantially limits a major life activity should be construed in favor of broad coverage of individuals to the maximum extent permitted by the ADA; and (c) the determination of whether someone is disabled should not require extensive analysis.¹⁰

2. An individual whose impairment substantially limits a major life activity need not also demonstrate that he or she is limited in performing "activities of central importance to daily life."¹¹ As an example, the proposed regulations provide that someone with a long-term 20-pound lifting restriction is substantially restricted in lifting (a major life activity), and need not also show that he or she is unable to perform activities of daily living in order to show that he or she is substantially limited in lifting.¹²

3. It is enough that an impairment limits only one major life activity.¹³ As an example, the proposed regulations provide that someone whose endocrine system is substantially limited due to diabetes is substantially limited in a major life activity (endocrine function is a major bodily function, which in turn is a major life activity), and need not also show that he or she is substantially limited in eating or any other major life activity.

4. The comparison of an individual's limitation to the ability of most people in the general population often may be made using a common-sense standard, without resorting to scientific or medical evidence.¹⁴ As an example, the proposed regulations provide that an individual with diabetes will meet the definition of disability because he or she is substantially limited in functions of the endocrine system.¹⁵

5. While the section of the statute protecting those that are "regarded as" disabled involves a "transitory and minor exception" (a durational minimum), that exception does not apply here.¹⁶ That is, an impairment may substantially limit a major life activity even if it lasts, or is expected to last, for less than six months. ¹⁷

6. In determining whether an individual has a disability, the focus should be on how the major life activity is substantially limited, not on what the individual can do in spite of the impairment.¹⁸

Additionally, the proposed regulations set forth three different categories of impairments, with corresponding examples.¹⁹ One of the most contentious parts of the new regulations is that one of the categories consists of those impairments that will "consistently meet the definition of 'disability.'"²⁰ According to the proposed regulations, certain characteristics associated with these impairments allow the individualized assessment of the limitation on an individual to be conducted "quickly and easily."²¹ The non-exhaustive list of examples of impairments in this category includes deafness, blindness, intellectual disability, missing limbs, mobility impairments requiring the use of a wheelchair (a mitigating measure), autism, cancer, cerebral palsy, diabetes, epilepsy, HIV or AIDS, multiple sclerosis, major depression, post-traumatic stress disorder, obsessive compulsive disorder, bipolar disorder, and schizophrenia.²² Although the EEOC's Assistant Legal Counsel publicly commented that the identification of these specific impairments does not eliminate the individualized assessment to be undertaken in an ADA analysis, the inclusion of these categories suggests that the EEOC may regard certain conditions as disabilities per se.²³

Another category consists of those impairments that may be disabling for some individuals, but not for others.²⁴ Examples under this category include asthma and high blood pressure.²⁵ According to the proposed regulations, it may require more analysis to determine whether these impairments are substantially limiting for a particular individual, but this determination should not demand "extensive analysis."²⁶

A third category consists of those impairments that the EEOC deems "usually not disabilities."²⁷ These are temporary, non-chronic impairments of short duration with no residual effects that usually will not substantially limit a major life activity.²⁸ Examples of these impairments include the common cold, seasonal or common influenza, and sprained joints.²⁹

Previously, the courts and the EEOC required an individual be prevented from working in a class or broad range of positions in order to be considered substantially limited in the major life activity of "working." While the ADAAA, on its face, does not change that, the proposed regulations do. They provide that an impairment substantially limits the major life activity of working if it substantially limits an individual's ability to perform, or to meet the qualifications for, the "type" of work at issue as compared to most people having comparable training, skills, and abilities.³⁰ Also, the proposed regulations provide that obtaining employment elsewhere is not dispositive of whether an individual is substantially limited in working.³¹

The proposed regulations reiterate the ADAAA's position that an individual's impairment can be analyzed without regard to ameliorative effects of mitigating measures (except for completely corrective eyeglasses and contact lenses).³² The regulations also reinforce the idea that an impairment may be a disability even where, because of mitigating measures, an individual has never experienced limitations or has experienced only minor limitations resulting from the impairment.³³ The proposed regulations go further, however, by adding surgical interventions, other than those that permanently eliminate the impairment, to the non-exhaustive list of interventions to ignore.³⁴ It will be interesting to see how courts handle these changes. Even where an individual's cancer is in remission, courts may still be obliged to ask whether the cancer would have substantially limited normal cell growth had it been untreated.

IV.   Regarded as Disabled

Following the language of the ADAAA, the proposed regulations provide that an individual is "regarded as" having a disability if an employer takes an adverse action against him based upon an actual or perceived impairment (or a symptom of an impairment or mitigating measure), whether or not such impairment limits or is perceived to limit a major life activity.³⁵ There is no longer a need to show that the employer believed the impairment (or perceived impairment) substantially limited performance of a major life activity.³⁶ As an example, the proposed regulations provide that an individual who is not hired for a driving job because he or she takes anti-seizure medication (a mitigating measure) is regarded as being disabled, even if the employer is unaware of the reason the employee is taking the medicine.³⁷

The proposed regulations also address the "transitory and minor exception" to being regarded as disabled.³⁸ Under this exception, if the impairment that is the basis for the action lasts or is expected to last less than six months (i.e., transitory) and is minor, the employee is not regarded as disabled.³⁹ For example, an individual that is not hired for a data entry position because he or she will be unable to type for three weeks due to a sprained wrist is not regarded as disabled, because a sprained wrist is a transitory and minor impairment.⁴⁰ However, the same impairment still could render the employee disabled under the actual disability standards (see Section III(5), above).⁴¹

As another example, if an employee has symptoms of a mild intestinal virus (a transitory and minor impairment) but is fired by the employer who believes the symptoms are actually symptoms of heart disease (a non-transitory impairment), the employee has been regarded as disabled.⁴² Under this example, the fact that the actual underlying impairment is transitory and minor provides no defense to employers, so long as the employer perceived the individual to have a non-transitory or non-minor impairment. The subjective belief of the employer about the duration of the impairment seems to be a factor here. On the other hand, where the actual impairment is non-transitory (e.g., heart disease), an employer may not claim as a defense that it subjectively believed the impairment was transitory and minor (e.g., intestinal virus).⁴³ This presents somewhat of a double-edged sword for employers.

Finally, while the ADAAA expands protection for being "regarded as" disabled, the proposed regulations note that the law does not require employers to reasonably accommodate such individuals.⁴⁴

V.   Bottom Line for Employers

Although not yet final, the proposed regulations are important to employers now because they illustrate the EEOC's current position on the ADAAA, and indicate how the EEOC is likely to handle cases in the interim.

It will probably take some time and litigation before all of the wrinkles in the ADAAA and proposed regulations can be ironed out. Right now, for example, the regulations contemplate a judge accepting "common-sense" evidence from a plaintiff to prove the extent to which his lungs are impacted by asthma - a prospect that seems unlikely in practice. Another gray area involves the new major life activity of interacting with others, and how courts will determine what it means to be substantially limited in that activity. How these scenarios, and others like them, will play out in courts remains to be seen.

Some things, however, are already clear. For example, the proposed regulations confirm that from now on, it will be much easier for individuals alleging discrimination to prove that they meet the definition of disability. In fact, the EEOC estimates that an additional one million workers may now meet the definition of disability. Accordingly, much less litigation will focus on whether the employee is disabled. Instead, employers will focus on proving that the motivation for the adverse action was non-discriminatory, that the person was not qualified, or that the accommodation was reasonable. To that end, employers should take care to write job descriptions that accurately capture the essential functions of each job position, and should continue to reasonably evaluate and respond to all requests for accommodation. Employers should also note that they can consider the effects of mitigating measures (e.g., wheelchairs) when determining whether a reasonable accommodation is needed.

1 See "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 74 Fed. Reg. 48431 (Sept. 23, 2009) (to be codified at 29 C.F.R. pt. 1630).
2 See id. at 48440.
3 See id. at 48440-43.
4 Id. at 48440.
5 Id.
6 Id.
7 Id.
8 See Id.
9 Id.
10 Id.
11 Id.
12 Id.
13 Id.
14 Id.
15 Id.
16 Id.
17 Id.
18 Id.
19 Id. at 48441-43.
20 Id. at 48441.
21 Id.
22 Id.
23 Statement of Christopher J. Kuczynski, Assistant EEOC Legal Counsel, can be found at http://www.eeoc.gov/eeoc/meetings/6-17-09/kuczynski.cfm
24 "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 74 Fed. Reg. 48431, 48442 (Sept. 23, 2009) (to be codified at 29 C.F.R. pt. 1630).
25 Id.
26 Id.
27 Id. at 48443.
28 Id.
29 Id.
30 Id. at 48442.
31 Id. at 48443.
32 Id. at 48440-41.
33 Id. at 48441.
34 Id.
35 Id. at 48443.
36 Id.
37 Id.
38 See id.
39 Id.
40 Id.
41 Id. at 48440.
42 Id. at 48443.
43 See id. at 48443.
44 Id. at 48443.