EEOC Issues Long-Awaited ADA Guidelines
Approximately one year after former President Bush signed the ADA Amendments Act (ADAAA), the EEOC has finally issued proposed regulations and an Interpretive Guidance for public comment. As expected, the new regulations make significant changes in how certain terms under the ADA are defined, which certainly will give rise to more disability claims. Here is a summary of the most significant changes and guidance to the regulations.
The term "disability" continues to mean either 1) physical or mental impairment that substantially limits one or more major life activities, 2) a record of such impairment, or 3) being regarded as having such an impairment.
The new regulations do not substantively change the definition of physical or mental impairment, but they do affect what constitutes a "major life activity." Specifically, major life activities are those that "most people in the general population can perform with little or no difficulty." The ADAAA provides a non-exhaustive list of activities and major bodily functions that are examples of major life activities, adding a number of major bodily functions covered such as special sense organs, skin, and musculoskeletal, among others.
With respect to redefining "substantially limits" the EEOC essentially states what it is not rather than what it is. Specifically, the EEOC states that "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." The new regulations then provide that the impairment does not have to prevent or significantly or severely restrict the individual from performing a major life activity, but must be more than a temporary, non-chronic impairment of a short duration that has little or no residual effects. Thus, the new definition of "substantially limits" simply states what it is not. The EEOC then provides a number of rules of construction to be used in evaluating whether or not an impairment substantially limits a major life activity.
Rules of Construction for Determining Whether a Substantial Limitation Exists
1. The term "substantially limits" is to be viewed in favor of broad coverage of individuals and should not require extensive analysis.
2. Individuals with impairments that substantially limit a major life activity are not required to also show that they are limited in performing activities that are of central importance to daily life.
3. An impairment need not substantially limit more than one major life activity. For example, individuals who have aids, and whose immune systems are substantially limited, are not required to further show that they are substantially limited in reproduction or any other major life activity.
4. Comparing an individual's limitation to the ability of most people in the general population utilizes a common sense standard rather than medical or scientific evidence. But this analysis would not foreclose individuals from demonstrating a substantial limitation by demonstrating their aptitude and showing a difference in their actual achievement and their expected achievement.
5. An impairment may substantially limit a major life activity even if it lasts or is expected to last fewer than six months. One question then, is how many months can the condition last and not be substantially limiting. The EEOC provides a hint in an example concerning a lifting restriction that is expected to last for "several months or more" being substantially limited, which suggests that less than three months may be too short a time period for a limitation to be substantial.
6. The analysis should not focus on what an individual is able to do despite the impairment; rather, it should focus on how a major life activity is substantially limited.
The positive effects of mitigating measures may not be considered. Negative effects of mitigating measures may be considered in determining whether a substantial limitation exists. Mitigating measures include such things as:
- medical supplies
- low-vision devices (i.e. those that magnify, enhance, or augment a visual image)
- hearing aids
- cochlear implants or other hearing device implants
- mobility devices
- oxygen therapy equipment and supplies
- assistive technology
- reasonable accommodations or auxiliary aids and services
- learned behavioral or adaptive neurological modifications
- surgical interventions that do not permanently eliminate the impairment.
They do not include ordinary eyeglasses or contact lens.
7. An episodic impairment or one that is in remission is a disability if it would substantially limit a major life activity when active. Examples of such impairments include multiple sclerosis, asthma, cancer, hypertension, seizure disorders, and psychiatric impairments such as depression, bi-polar disorder, and post traumatic stress disorder.
The EEOC has provided a list of impairments that it believes will consistently meet the definition of disability because of the impairment's characteristics. The list includes impairments such as:
- intellectual disability
- completely or partially missing limbs
- mobility impairments that require the use of a wheelchair
- cerebral palsy
- HIV or aids
- multiple sclerosis and muscular dystrophy
- major depression
- bi-polar disorder
- post-traumatic stress disorder
- obsessive-compulsive disorder
The EEOC makes clear that this list is not exhaustive.
The new regulations provide a number of examples concerning impairments that may substantially limit an individual in a major life activity. The EEOC cites the following conditions as examples: asthma, high blood pressure, learning disability, panic disorder, anxiety disorder, hyperthyroidism, carpel tunnel syndrome, or certain types of mental impairments such as panic or anxiety disorders.
These are temporary non-chronic impairments of short duration with little or no residual effects, such as a sprained ankle or common colds.
Substantially Limited in Working
The regulations formerly provided that an individual was substantially limited in working if he was precluded from a broad range or a class of jobs. An individual will be viewed as substantially limited in working if the impairment substantially limits an individual's ability to perform, or to meet the qualifications for the type of work at issue. The "type of work at issue" includes the job the individual has been doing or the job for which the individual has applied, as well as jobs with similar qualifications or job-related requirements that the impairment would substantially limit the individual from doing.
Determining the type of work at issue includes comparing the work of an individual who is substantially limited in performing to the work most people with comparable training, skills, and abilities do. For example, a type of work could be driving commercial motor vehicles regulated by the DOT, assembly line jobs, or law enforcement jobs. Further, the relevant type of work could be determined by looking at the job-related requirement that an individual is substantially limited in meeting compared to most people performing such jobs.
The EEOC gives examples of job-related requirements that are involved in certain types of work such as repetitive bending, reaching, manual tasks, repetitive or heavy lifting, prolonged sitting or standing, or driving. Job-related requirements also would include work environments that involve high temperatures, high noise levels, high stress, or rotating or excessively long shifts. Finally, an individual's ability to obtain other employment will not preclude a finding that the individual is substantially limited in working.
"Perceived As" Disability
Individuals can prove that they are regarded as having a disability by showing they were discriminated against because of an actual or perceived physical or mental impairment. But an employer is no longer required to believe that the actual or perceived impairment substantially limited a major life activity to incur liability. Rather, if an employee can show a prohibited employment action occurred because of an actual or perceived impairment, then coverage is established.
A perceived as claim cannot be established if the impairment is transitory, i.e., has lasted less than six months and is minor. But if an employer believes the employee has an impairment that is not transitory and minor, (AIDS, for example), the employer has perceived the employee as disabled. More importantly, if an employer takes prohibited action against an employee based on that employee's symptoms or use of a mitigating measure – even if the employer does not know what the impairment is – the employer has perceived the employee as disabled.
The EEOC provides the example of an employer who refuses to hire an individual for a driving job because the employee takes anti-seizure medication. An employer who asks an employee whether he needs an accommodation, however, will not be viewed as having perceived the employee as disabled.
The EEOC now specifically states that employers must accommodate not only individuals with actual disabilities, but individuals with records of disabilities, although employers are not required to accommodate "perceived-as" disabilities. Importantly, the positive and negative effects of mitigating measures may be considered when evaluating whether an individual needs an accommodation and whether an individual is a direct threat.
The EEOC has added a provision stating that qualification standards, employment tests, or other selection criteria based on a person's uncorrected vision is prohibited unless the employer can show that the standard, test or criteria is job related to the position for which it is required, and is consistent with business necessity.
What Employers Need To Do Now
These new regulations are now open for public comment and may change. Nevertheless they point clearly to an era of heightened scrutiny in the area of disability claims and requests for reasonable accommodation under the ADA. It remains to be seen how much of this new approach will be endorsed by courts, but we recommend a cautious approach. Employers should review their current policies on non-discrimination and reasonable accommodation, and ensure that supervisors are well trained to handle all potential disability claims or requests for accommodation in an appropriate manner.
For more information contact any Fisher Phillips attorney.
This Legal Alert provides an overview of certain aspects of new regulations. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.