The Proposed ADA Regulations and Their Effect On You
On September 23, 2009, the Equal Employment Opportunity Commission (EEOC) issued proposed revisions to the regulations implementing the Americans with Disabilities Act of 1990 (ADA). This proposed rulemaking represents the EEOC’s long-awaited response to the ADA Amendments Act of 2008 (ADAA), which became effective on January 1, 2009, and enacted significant changes to the ADA.
It is
important to note that these regulations are merely proposals and have not yet
taken effect. However, many commentators
anticipate that, once the EEOC finalizes the new
The EEOC will accept comments on the proposals until November 23, 2009. You can submit comments electronically at http://www.regulations.gov.
This article provides a summary of some of the significant revisions contained in the EEOC’s proposed regulations and their potential effect on employers if finalized. The bulk of the changes center around redefining who will be covered under the ADA, which has been one hurdle for ADA claimants. In order to be covered the individual must have had an impairment that significantly restricted a major life activity. Courts had interpreted this to mean that the individual must have been severely limited or virtually unable to perform tasks of central importance to most people's daily lives. The ADAA and proposed ADA make several definition changes that make the standard much lower for proving the existence of a disability – and thus for obtaining initial coverage – under the ADA.
Major Life Activity
Under the current regulations, a person has an actual disability only if he or she has a physical or mental impairment that substantially limits one of more “major life activities.” The current regulations give the following examples of “major life activities:” caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. The proposed regulations expand on this definition of “major life activity” in two ways.
First, the proposal includes the following additional examples of “major life activities:” eating, sleeping, standing, sitting, reaching, lifting, bending, reading, concentrating, thinking, communicating and interacting with others. Many of these activities had previously been recognized by the EEOC as “major life activities,” but a notable few—sitting, reaching and interacting with others—are new.
Second, the proposal defines “major life activities” to include “major bodily functions.” This change in definition is a direct result of the text of the amended statute. Following the text of the ADAA, “major bodily functions” include functions of the immune system; normal cell growth; and digestive, bowel, bladder, neurological, brain, respiratory, circulatory and reproductive functions. The proposal also adds some “major bodily functions” to the list: functions of the special sense organs and skin; and genitourinary, cardiovascular, hemic, lymphatic and musculoskeletal functions. Finally, the proposal gives some examples of conditions that affect major bodily functions. For example, the proposal states that cancer affects normal cell growth, kidney disease affects bladder function, epilepsy affects neurological functions of the brain and HIV/AIDS affect functions of the immune system and reproductive functions.
Effect on You
As with many changes associated with the ADAA, these proposals will expand the number of employees who potentially qualify as “disabled” and, thus, may be eligible for protection from the ADA. This is particularly true as to “major bodily functions.” In the past, an individual had to show that an impairment substantially limited a major life activity—such as walking, seeing, hearing, etc.—in order to demonstrate that he or she has a disability under the ADA. Now, however, an individual may be deemed disabled if he or she has an impairment that substantially limits a “major bodily function.” This means that an individual can conceivably be deemed to have a disability under the ADA even if the substantial limit to his or her “major bodily functions” has no open or obvious effect on the ability to perform general day-to-day activities.
Substantially Limits
Following the mandate of the ADAA, the proposal also effects significant changes to the definition of “substantially limits.” The current regulations had set a fairly high standard for covered limitations, stating that an individual must be “significantly restricted” as to the condition, manner or duration under which an individual can perform a major life activity. The proposal deletes the “significantly restricted” language and simply states, “An impairment is a disability within the meaning of this section if it ‘substantially limits’ the ability of an individual to perform a major life activity as compared to most people in the general population.”
Although this definition does not give any substantial guidance on determining whether a condition is a disability, the proposal gives some examples that outline the EEOC’s approach to deciding whether an individual is “substantially limited” in performing a “major life activity.” For example, the proposal states that someone with a 20 pound lifting restriction that is not of short-term duration is substantially limited in lifting. The proposal also gives some guidance on how long an impairment must last for it to rise to the level of the disability. In the past, many employers have assumed that an impairment must last at least six months to rise to the level of a disability. However, the proposal states that such a bright-line assumption may not be true in all cases going forward, stating, “An impairment may substantially limit a major life activity even if it lasts, or is expected to last, for fewer than six months.”
Effect on You
Again, these proposals will expand the number of individuals who may be deemed actually “disabled” and who may qualify for “reasonable accommodations” under the ADA. In addition, employers will no longer be able to assume that an employee is not “disabled” simply because his or her condition will not last for six months. The proposal states in other places that “short term” conditions do not qualify as actual disabilities, but provides no bright-line rule. Given how vague the EEOC’s guidance is on the definition of “substantially limits” and the time requirement for a disability, these proposals make it increasingly risky for employers to attempt to determine on their own whether or not an employee is disabled and to deny an accommodation on that basis.
Examples of Conditions that are Usually Disabilities
The current regulations do not give any examples of conditions that will usually qualify as disabilities, and the EEOC has long proclaimed that the determination of whether a condition is a “disability” must be made on a case-by-case basis. The proposed regulations, however, depart from this approach and name some conditions that may usually qualify as disabilities, including autism, cancer, cerebral palsy, diabetes, epilepsy, HIV or AIDS, multiple sclerosis or muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.
Effect on You
If these examples are adopted and accepted by the courts, then all employees with such conditions could qualify for the protection of the ADA, regardless of how the conditions affect their lives. As with other revisions, this will expand the reach of the ADA.
Regarded As Disabled
Many employers know that an individual who is not actually disabled can still claim the protection of the ADA if he or she can show that an employer nevertheless “regarded” him or her as disabled. Under case law interpreting the current regulations, making out such a “regarded as” case is very difficult because an employee must show that the employer wrongfully perceived the employee as being substantially limited in a major life activity—that is, that the employer wrongfully perceived the employee as being actually disabled. The proposal departs significantly from this rule and states that an employer has “regarded” an employee as disabled if it takes an employment action against the individual because of an actual or perceived impairment—even if the employer does not perceive the impairment as substantially limiting. The only limitation to this definition is that an employer will not “regard” an employee as disabled if it takes an action based on a transitory (less than six months in duration) and minor condition.
Effect on You
Practically speaking, this revision means that employers will likely face more EEOC charges and lawsuits from employees claiming that they have been “regarded as” disabled. It also means that employers must be exceedingly careful about making employment decisions based on an employee’s mental or physical conditions. Even if those conditions do not rise to the level of an actual “disability,” they may entitle the employee to the protection of the ADA under the “regarded as” prong. One limit to the potentially far reach of this provision is, however, that the proposal explicitly states that employees need not provided reasonable accommodations to employees who it merely “regards as” disabled.
The full text of the proposed regulations can be found at http://eeoc.gov/ada/amendments_notice.html.
If you have any questions related to these proposed regulations, please contact a member of our Labor and Employment Practice Group.
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.