Months of speculation came to an end March 24, 2011, when the Equal Employment
Opportunity Commission (EEOC) issued its final amended regulations implementing the Americans with Disabilities Act Amendments Act (ADAAA), which took effect on January 1, 2009.

The EEOC's final regulations, which are effective 60 days from their publication in the Federal Register on March 25, 2011, contain significant changes from the pre-Amendments Act ADA. Consistent with Congress' stated purpose in passing the ADAAA, the new regulations expand the ADA's coverage by lowering the standard for proving disability. Although the new regulations do little to quell employer fears of increased liability under the ADAAA, the EEOC has retreated, at least incrementally, from some of the more controversial positions it took in the proposed regulations.
   
This article highlights some of the more significant changes effected by the final ADAAA regulations, and their likely impact on employers, noting where the EEOC has pulled back from positions it took in its proposed regulations.

Revised "Regarded As" Prong
Expands Coverage Significantly

Perhaps the most substantial change in the new regulations is the expansion of the "regarded as" prong of the ADA's definition of disability. The final regulations contain some additional clarification to this prong of the definition.

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. Consistent with the EEOC's proposed regulations, however, the final ADAAA regulations depart significantly from the old rule that, under the "regarded as" prong, the employee had to show that the employer wrongfully perceived the individual as being substantially limited in a major life activity—that is, the employer wrongfully perceived the individual as being "actually" disabled.

The new regulations explain that an employer has "regarded" an individual 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 individual as disabled if it takes an action based on a transitory (less than six months in duration) and minor condition. Note that "minor" is not defined in the regulations. In addition, as noted below, this six-month rule only applies to the "regarded as" prong of the ADA's definition of disability, not to the "actual disability" or "record of disability" prongs.

Employer Takeaway:
   
From the EEOC's perspective, where a reasonable accommodation is not at issue, the expansion of the "regarded as" prong of the ADA's definition of disability renders it unnecessary for the EEOC or courts to consider the "actual disability" and "record of disability" prongs. In other words, the bar for proving ADA discrimination cases has been significantly lowered, likely leading to increased litigation. An employee will simply need to show an actual or perceived impairment to be "disabled" and entitled to protection against discrimination under the ADA. The EEOC acknowledges, however, that an individual must be covered under the "actual disability" and/or "record of disability" prongs to challenge an employer's alleged failure to provide a reasonable accommodation.

"Major Life Activity" Overhauled

Under the old ADA regulations, an individual had an "actual disability" only if he or she had a physical or mental impairment that substantially limited one or more "major life activities." The old regulations provided the following examples of "major life activities": caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. The new regulations expand on this definition of "major life activity" in two ways.

First, the new regulations list 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 in its old regulations as "major life activities," but a notable few—sitting, reaching and interacting with others—are new.

Second, the new regulations define "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 ADAAA, "major bodily functions" now include functions of the immune system; normal cell growth; and digestive, bowel, bladder, neurological, brain, respiratory, circulatory and reproductive functions. The new ADAAA regulations also add some "major bodily functions" to the list: functions of the special sense organs and skin; and genitourinary, cardiovascular, hemic, lymphatic and musculoskeletal functions. The final regulations further explain that "major bodily functions" include "the operation of an individual organ within a body system," for example, the operation of the kidneys, liver or pancreas.

Employer Takeaway:

These changes expand the number of individuals who potentially qualify as "disabled" and, thus, may be eligible for protection from the ADA. This is particularly true with respect 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. Now, however, an individual may be disabled under the amended ADA 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. As noted by the EEOC, with this expanded definition of a major life activity, there will be very little need for employees to claim that they are substantially limited in the major life activity of working.

Substantially Limits
   
As with the proposed regulations, the new regulations effect significant changes to the definition of "substantially limits." The old ADA regulations, prior to the Amendments Act, set a high bar 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 new regulations delete the "significantly restricted" language and simply state that, "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." The EEOC declined to provide a clear definition of substantially limits in its final regulations and stated that the employer, in many situations, may not need to look at condition, manner and duration. The new regulations also make clear that an impairment need not last at least six months to qualify as substantially limiting, as many employers had previously assumed, but does not provide any guidance as to the length the impairment must last to qualify.

Employer Takeaway:
   
Again, this definitional change will expand the number of individuals who may be deemed "actually disabled," thus potentially qualifying for "reasonable accommodations" under the ADA. In addition, employers will no longer be able to assume that an individual is not "disabled" simply because his or her condition will not last for six months. 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 individual is disabled and to deny an accommodation on that basis.

Per Se Disabilities?

In a change from the proposed regulations, the final regulations no longer contain the list of impairments that would "consistently," "sometimes," or "usually not" amount to disabilities. Employers and other commentators on the proposed regulations argued that providing a list of impairments that would "consistently" qualify as covered a disability would amount to the creation of per se disabilities, rather than requiring a case by case analysis of the condition, which has always been required under the ADA.

As with the proposed regulations, the final regulations include rules of construction to "guide the analysis" (in the words of the EEOC's Fact Sheet on the Final Regulations) of whether a particular impairment constitutes a disability. Although no longer phrased as impairments that would consistently meet the definition of a disability, the new regulations still provide a list of impairments that, based on what the EEOC has called a "predictable assessment," should "easily be concluded to be impairments" when such rules of construction are applied. These impairments include epilepsy, diabetes, cancer, HIV infection and bipolar disorder.

Employer Takeaway:
   
Employers retain the right to argue, on a case by case basis, that any given impairment does not constitute a disability. However, as a practical matter, employers should expect that the impairments listed above will nearly always qualify as a disability.     

In summary, the EEOC's final regulations achieve the goal of essentially taking the question of whether an individual is disabled out of the equation. Rather than trying to determine whether a particular employee is disabled, employers should focus their attention on whether the individual is qualified to perform the essential functions of the job and whether, if needed, a reasonable accommodation can be provided without undue hardship. In making an accommodation decision, employers should always discuss the situation and the available options with the employee and solicit the employee's suggestions. Although a reasonable accommodation may not be available, carefully engaging in this process will not only satisfy part of the employer's obligations under the ADA, but also enhance employee relations and morale, which will reduce the likelihood of litigation.

The following article was contributed by Tami Earnhart and Manolis Boulukos of Ice Miller's Labor and Employment Group. Contact Tami at tami.earnhart@icemiller.com or 317-236-2235. Contact Manolis at emmanuel.boulukos@icemiller.com or 317-236-2233. © 2010 Ice Miller LLP. All Rights Reserved.