On January 1, 2009, the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) went into effect. The final regulations to the ADAAA were published by the Equal Employment Opportunity Commission (EEOC) on March 25, 2011. Congress passed the ADAAA in response to federal court rulings that it believed substantially weakened important protections of the original Americans with Disabilities Act (ADA). The amendments (intended to restore the “spirit and intent” of the original ADA legislation) greatly expand the field of employees who may be deemed disabled and, therefore, protected under the law. Employers need to be even more careful when making decisions affecting applicants and employees who may have physical or mental impairments.
Q: What is a “disability” according to the ADAAA?
A: The ADAAA retained the three-prong “disability” definition from the ADA of: (1) a physical or mental impairment that substantially limits one of more major life activities; (2) a record of such impairment; or (3) being regarded as having such an impairment. In assessing what constitutes a “disability,” the ADAAA requires courts construe that term “to the maximum extent permitted” under the law. This is significant because various other ADAAA revisions increase the number of employees protected by the definition of “disability.” The definition now includes any impairment that is episodic or in remission. Therefore, a condition, like cancer, that is not currently impairing the individual would still be a disability if it would substantially limit a major life activity (MLA) “when active.”
Q: Are impairments be considered “disabilities” if they are controlled?
A: Under a prior U.S. Supreme Court decision, Sutton v. United Air Lines, Inc., physical and mental impairments were not considered “disabilities” if controlled by “mitigating measures,” such as medication or corrective devices (e.g., hearing aids or prosthetics). The ADAAA explicitly states that unless they are eyeglasses or contact lenses, such measures may not be considered when analyzing whether the impairment substantially limits a MLA. The employer must now consider whether the impairment is a disability without considering how much the mitigating measures correct the disability. Previously, certain employees whose impairments (e.g. asthma, diabetes or epilepsy) were controlled by medication and treatments could be excluded from coverage because their condition was not severe enough. Now, those employees are likely protected as “disabled.”
Q: How does the ADAAA define “major life activities”?
A: To be deemed disabled, an employee must have an impairment that substantially limits “one or more major life activities.” According to the ADAAA, these activities include, but are not limited to: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, breathing, lifting, bending, speaking, learning, reading, concentrating, thinking, communicating and working. Further expanding the definition of “MLA,” the ADAAA adds “the operation of a major bodily function” to the list, specifically enumerating coverage for function of the immune system; special sense organs and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal and reproductive functions.
The regulations specify that whether an activity is considered an MLA is not determined by whether such activity is of central importance to daily life, nor should the term “major” be interpreted to create a demanding standard.
Q: What does the ADAAA consider to be a “substantially limiting” impairment?
A: The ADAAA rejects the U.S. Supreme Court’s stringent interpretation of the phrase, “substantially limits a major life activity,” which required an impairment to prevent or severely restrict an activity of central importance to the individual’s daily life. While the ADAAA rejects that pro-employer definition, it provides no alternative standard and retains the term “substantially limits” rather than adopt one that properly denotes the necessary functional limitation. Instead, the ADAAA requires the EEOC to define “substantially limit” which likely will be less strict. The EEOC regulations state that “substantially limits” must be construed broadly in favor of maximum coverage under the terms of the ADAAA, and that, like the term “major,” it is not meant to be a demanding standard. Specifically, under the EEOC regulations an impairment is a disability if it substantially limits an individual’s ability to perform a MLA compared to most people in the general population. According to the regulations, this determination should not require extensive analysis or the presentation of scientific, medical, or statistical data.
While no concrete standard for “substantially limits” is provided, the regulations suggest that it may be useful to consider, as compared the rest of the population, the degree of difficulty, effort and time required for the individual with a disability to perform the MLA; the pain experienced when performing the MLA; the length of time performance of the activity can be sustained; and/or the way the impairment affects operation of a major bodily function. Further, negative effects of medication or treatment may also be considered when determining whether an impairment is substantially limiting.
Q: What happens under the ADAAA if an employer discriminates against someone “regarded as” having a disability?
A: The ADAAA also makes it easier to prove an employer discriminated against someone it wrongly “regarded as” having a disability. Under the original ADA, an individual bringing suit needed to prove that the employer regarded the employee as being substantially limited in a major life activity. This was a difficult standard to meet. Now, the individual only has to show that the employer perceived the individual as having a mental or physical impairment, regardless of whether the impairment substantially limits, or is perceived to limit, a major life activity.
Q: I understand that it will be harder for employers to defend ADA claims. Does any part of the new ADAAA favor employers?
A: The ADAAA does clarify that “regarded as” claims cannot be based on impairments that are minor or “transitory,” i.e., expected to last less than six months. Whether an impairment is both transitory and minor, however, must be determined objectively and cannot be based on the employer’s subjective belief. In using this defense, employers must also remember that it does not apply to the “actual disability” or “record of disability” prongs of the statute. In addition, the ADAAA makes it clear that employers do not have to provide a reasonable accommodation to individuals who are “regarded as” disabled. Finally, the ADAAA prohibits “reverse discrimination” claims. Thus, a non-disabled employee may not claim discrimination if a disabled employee is favored in an employment decision.
Q: What should our company do as a result of the changes?
A: If you have 15 or more employees, consider the following steps to prepare for the ADAAA:
• Review and, if necessary, revise any applicable handbook policies, interactive process questionnaires and disability-related employment information.
• Train HR personnel, supervisors and interviewers on the ADAAA and how it applies to their daily operations.
• Be prepared to consider offering accommodations to a broader range of employees. There are three categories of reasonable accommodation: (1) those required to ensure equal opportunity in the application process; (2) those that enable the individual with disabilities to perform the essential functions of the position held or applied for; and (3) those that enable the individual with disabilities to enjoy the benefits and privileges of employment to the same degree as individuals without disabilities.
• When addressing specific disability determinations and accommodations concerns, include supervisors, HR personnel and legal counsel in the analysis and apply the revised disability laws.
• Manage litigation risks proactively by consulting now with your legal advisers to counteract the inevitable rise in the number and expense of disability lawsuits.
This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by attorney Christine T. Cossler, a partner in the Cleveland firm of Walter & Haverfield LLP.