EEOC Issues Final Regulations on ADA Amendments Expanding Scope of Employee Protections: What Employers Need to Know
The Equal Employment Opportunity Commission (EEOC) recently issued its final regulations implementing amendments to the Americans with Disabilities Act (ADA), making it easier for employees to establish a disability status under the ADA. The final regulations go into effect May 24, 2011. As a result of the ADA amendments and final regulations, it is anticipated that employee claims requiring reasonable accommodations will increase significantly, along with the accompanying risk of litigation arising from such claims. The EEOC estimates that over the next five years the number of accommodations requested and required nationwide will increase anywhere from 2 million to 6.1 million, at an annual cost to employers of between $60 million to $183 million over the same period. The amendments to the ADA, as confirmed by the final regulations, are designed to shift the focus of inquiries under the ADA from whether an individual's impairment meets the definition of "disability" to whether discrimination has occurred or an accommodation is necessary; i.e., it will be much easier for one to show a disability.
The ADA prohibits employment discrimination against a qualified individual on the basis of disability. A "disability" is defined by the ADA as a physical or mental impairment that "substantially limits" an individual's ability to perform a "major life activity." The ADA also prohibits discrimination against individuals who have a "record of" or are "regarded as" having such an impairment. Discrimination under the ADA includes an employer's failure to provide reasonable workplace accommodations to individuals with known disabilities, unless the employer can demonstrate the accommodation would impose an undue hardship on its business operations. In response to several United States Supreme Court decisions that had a limiting effect on the scope of "disability" under the ADA, Congress enacted the ADA Amendments Act of 2008 (ADAAA), requiring a broader view of what constitutes a disability to allow coverage for a greater number of people. The long-awaited final regulations, published by the EEOC on March 25, 2011, implement significant changes regarding how the key terms of the ADA should be interpreted, with the overriding purpose of expanding the ADA's protections.
While the ADA's definition of "disability" has not technically changed, the final regulations set forth nine rules of construction to be applied in determining whether a substantial limitation of a major life activity exists. In doing so, the EEOC has effectively redefined what is a disability.
(1) The term "substantially limits" should be construed broadly and is not meant to be a demanding standard.
(2) An impairment is a disability that substantially limits an individual's ability to perform a major life activity as compared to most people in the general population. However, it need not prevent or significantly restrict the individual from performing the major life activity. Employers should consider the following factors when making the comparative analysis:
- The conditions under which the individual performs the major life activity;
- The manner in which the individual performs the major life activity;
- The time it takes the individual to perform the major life activity;
- The duration of time the individual is able to perform the major life activity;
- The difficulty or effort required to perform the major life activity;
- Any pain experienced; and
- Any negative side effects of mitigating measures, such as medication.
(3) The threshold issue of whether an impairment substantially limits a major life activity should not demand extensive analysis. Rather, the employer's focus should be on whether it complied with its obligations under the ADA and whether discrimination occurred.
(4) The determination of whether an impairment substantially limits a major life activity requires a case-by-case, individualized assessment. However, in making this assessment, the term "substantially limits" must be interpreted and applied to require a degree of functional limitation that is lower than the standard applied prior to the ADAAA.
(5) The comparison of an individual's performance of a major life activity to that of the general population usually will not require scientific, medical or statistical analysis, though such analysis may be used where appropriate.
(6) The determination of whether a substantial limitation exists must be made without regard to the ameliorative effects of mitigating measures, with an express exception for ordinary eyeglasses or contact lenses. In other words, the evaluation of a "substantial limitation" of an individual who is taking medication or using a device such as a hearing aid to alleviate an impairment must be based on an individual's non-medicated or unassisted condition.
(7) An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. Examples of episodic impairments set forth in the regulations include, but are not limited to: asthma, hypertension, epilepsy, multiple sclerosis, post-traumatic stress disorder, and psychiatric disabilities.
(8) An impairment need only limit one major life activity in order to be considered "substantially limiting."
(9) The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting. The regulations specifically reject any minimum duration and point out that duration is only one factor to consider. Thus, even conditions of short duration can qualify as a disability under the ADA. However, temporary, non-chronic impairments with little or no residual effects, such as a cold or common flu, sprained joints or broken bones that are expected to heal completely, would not likely substantially limit a major life activity within the meaning of the regulations.
"Major Life Activity"
The final regulations include the following as major life activities covered by the ADA: eating, sleeping, walking, standing, sitting, reaching, lifting, bending, reading, concentrating, thinking, communicating and interacting with others. The regulations also specifically provide that a "major life activity" is not determined by whether it is of "central importance" to daily life. The regulations provide that major bodily functions themselves are major life activities for purposes of the ADA and include the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions, as well as special sense organs, skin, and the genito-urinary, cardiovascular, hemic, lymphatic and musculoskeletal systems.
The regulations omit any discussion of when an impairment will substantially limit the major life activity of "working." The EEOC indicates that such an analysis will rarely be necessary because, in most cases, an impairment that substantially limits a major life activity will also substantially limit working. An individual seeking to demonstrate a substantial limitation of the major life activity of working must show the impairment limits his/her ability to perform a class of jobs or broad range of jobs in various classes, compared to most people having comparable training, skills and abilities. Thus, generally, one who is substantially limited in performing only the unique aspects of a single, specific job will not be deemed substantially limited in the major life activity of working.
Although the EEOC emphasizes that individualized analysis is still required with respect to all disabilities, the final regulations identify conditions that "in virtually all cases" will satisfy the definition of disability. The following disabilities are included on this list: deafness, blindness, intellectual disability (brain function), missing limbs, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder and schizophrenia. The regulations state that the necessary individualized assessment should be "particularly simple and straightforward" regarding these types of impairments.
"Regarded as" Disabled
The ADAAA and final regulations also make it easier for employees to establish they are disabled for purposes of the ADA if they believe they are "regarded as" having a disability by the employer. The regulations make clear that this inquiry is to be objective, focusing on how the employee is actually treated because of perceived physical or mental impairment, rather than the employer's subjective belief about the nature of the impairment. Therefore, the concepts of "substantial limitation" and "major life activities" are not relevant in evaluating coverage where an individual claims he or she was "regarded as" disabled. The good news for employers is that the regulations confirm employers are not required to provide reasonable accommodations for employees who are only "regarded as" disabled. Cases in which individuals do not seek reasonable accommodation are to be evaluated solely under the "regarded as" prong of the definition of disability. One who argues an employer should have made an accommodation must be able to prove either that he/she has an actual disability or has a record of such disability.
Implications for Employers
The ADAAA and final regulations set a low bar for establishing that an impairment qualifies as a disability and confirm that the primary focus of inquiries will remain on reasonable accommodations and whether discrimination occurred. It is, therefore, crucial for employers to update and implement reasonable accommodation policies and practices. This should involve updated training of Human Resource professionals, supervisors and managers on how to:
- Recognize an employee's potential need for accommodation;
- Identify potential accommodations to consider;
- Engage in an interactive process with the employee to identify and evaluate potential accommodations and determine which would best enable the employee to perform the functions of his/her job;
- Evaluate whether potential accommodations would pose an undue hardship on the employer; and
- Monitor and, if necessary, re-evaluate accommodations once they are in place to ensure they are effective and reasonable.
Although the Human Resources Department often leads the accommodation process, the importance of supervisors and managers in the process should not be overlooked. Such individuals are often the first to become aware of an employee's limitations and the need for accommodation, and will typically have the most complete understanding of the employee's job duties and performance issues. Therefore, training in the accommodation process should include supervisors and managers.
The interactive process between the employer and individual seeking an accommodation must be taken very seriously, and employers should readily engage in it when an accommodation is sought. Generally, the individual with a disability must first inform the employer that an accommodation is needed before the employer is obligated to engage in the reasonable accommodation interactive process. Remember, employees do not have to use specific words, such as "disability" or "accommodation," or refer to the ADA in order to make their requests for accommodation. Requests for accommodation also need not be in writing, although the employer may ask the employee to put the request in writing after it is made verbally or through some other mode of communication. Because many more individuals will qualify as disabled as a result of the new regulations, employers will generally not be able to rely on the absence of a disability as a defense to claims under the ADA and will have to defend, instead, based on the lack of discrimination. Good faith participation in the accommodation process will play a vital role in demonstrating a lack of discrimination. Employers should also carefully document the entire interactive process relating to accommodations, e.g., all communications with the individual, all requests made by the individual, any investigations of potential accommodations, offers of accommodations made by the employer, any agreements reached and any failures to request or accept accommodations.
Employers would also be wise to review job descriptions, or create them where absent, to ensure that they accurately and fully capture the essential functions of a job. Properly prepared job descriptions should be afforded considerable weight by the courts and the EEOC now that the focus has shifted so decidedly away from the issue of whether an individual has a disability to whether a reasonable accommodation was offered and whether there was disparate treatment. Courts will compare an employee's ability to perform the essential functions of a specific job with those functions identified in a job description. Employers should also review language in company policies and employee handbooks to make sure it is consistent with the ADAAA and the regulations. Moreover, employers should review their applications and other documents that might elicit information about an applicant's/employee's disability, and determine if they are still appropriate.
 It should be noted, however, that employers may not use qualification standards, tests, or other selection criteria that are based on uncorrected vision standards.
 Generally, the employer need initiate the process only if the employer knows the employee has a disability that is causing the employee to experience workplace problems and knows, or has reason to know, that the disability prevents the employee from requesting an accommodation, as might be the case with a mental disability.