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The EEOC Issues Final Regulations Implementing the
ADAAA
By Dean J. Schaner
ON SEPT. 25, 2008, former President George W. Bush signed the American with Disability Act Amendments Act of 2008 (the �ADAAA� or the �act�) into law, broadening the definition of �disability� under the ADA. The ADAAA makes it easier for people to establish that they are protected by the ADA and overturns holdings in several well-known Supreme Court decisions, which had previously narrowed the �disability� definition.
BACKGROUND
The EEOC issued a Notice of Proposed Rulemaking in September 2009 to implement regulations addressing the ADAAA, and received well over 600 public comments in response. The final regulations were published in the Federal Register March 25 and are designed to simplify the determination of who has a �disability� as defined by the ADA. See www.gpo.gov/fdsys/ pkg/FR-2011-03-25/pdf/2011-6056.pdf. The regulations will become effective May 24.
The final regulations differ from the proposed regulations in a variety of ways. For example, the final regulations modify or remove the list of impairments that would �consistently,� �sometimes,� or �usually not� qualify as disabilities. Rather, Section 1630.2(j) of the final regulations provides nine rules of construction to guide the analysis and explains that by applying those principles, some impairments will virtually always constitute a disability. Moreover, the final regulations endeavor to clarify the scope of the �substantially limits� definition and reincorporate an analysis of the �condition, manner or duration� under which a major life activity can be performed.
EXPANSIVE DEFINITIONS
The final regulations include the following key elements:
1. �Disability� shall be interpreted broadly in favor of expansive coverage to the maximum extent permitted by the ADA�s terms and should not require an extensive analysis. An �impairment� is a �disability� if it substantially limits the ability of an individual to perform a major life activity in comparison to the general population. The regulations emphasize that the primary focus should be whether the employer complied with its accommodation obligations and whether discrimination occurred, not whether an individual is substantially limited in a major life activity.
2. �Substantially limits� should likewise be construed broadly and need not �prevent, or significantly or severely restrict� a person from performing a major life activity and will require an individualized assessment. By expanding the definition of �major life activities,� the final regulations include a list of impairments that will, at a minimum, substantially limit a host of major life activities.
3. Whether an activity is a �major life activity� is not determined by reference to whether it is of �central importance to daily life,� as previously required under Toyota Motor Mfg., Ky. V. Williams, 534 U.S. 134 (2002). Further, the term �major� shall not be interpreted strictly to create a demanding standard for disability.
4. Mitigating measures, except for ordinary eyeglasses and contact lenses, shall not be considered when determining whether an individual is disabled.
5. �Major life activities� include major bodily functions. The final regulations enumerate several examples that do not appear in the ADAAA, including special sense organs, skin, genitourinary, cardiovascular, hemic, lymphatic and musculoskeletal functions.
6. The final regulations also contain an appendix, which provides interpretive guidance regarding the ADAAA. The appendix includes a discussion of the major life activity of working. For example, demonstrating a substantial limitation in performing the unique aspects of a single specific job is not sufficient to establish that an individual is substantially limited in the major life activity of working.
7. An episodic impairment or one in remission will be considered a disability if it would substantially limit a major life activity when it is active.
8. �Regarded as� disabled no longer requires a showing that the employer believed the individual�s impairment (or perceived impairment) substantially limited a major life activity, unless the impairment is transitory (lasting or expected to last for six months or less) and minor. If an employer bases an employment action on an actual or perceived impairment that was not transitory and minor, the employer regards the individual as disabled, whether or not myths, fears, or stereotypes about disability motivated the employer�s decision.
9. A �record of� a disability may be shown by either evidence that the person previously met the definition of �disabled� or was once misclassified as having a substantially limiting impairment.
EEOC GUIDANCE
The Equal Employment Opportunity Commission has released two question and answer documents to aid the public and employers in understanding the law and new regulations. These documents are available on the EEOC website at
www.eeoc.gov/laws/statutes/adaaa_info.cfm.
As part of its proposed rulemaking, the commission conducted a preliminary regulation impact analysis to determine the costs and the benefits associated with the new provisions of the ADAAA. Upon further review of its preliminary analysis and feedback from those who submitted comments to the proposed rules, the commission revised its analysis. The EEOC estimated that anywhere between approximately 12 million and 38.4 million individuals in the workforce will be considered disabled under the new ADA as amended (as opposed to one million in its preliminary analysis). Additionally, the resulting increase in reasonable accommodations requested and required as a result of the ADAAA could range from approximately 2 million to 6.1 million. This translates to an estimated cost to employers of between $60 million and $184 million attributable to the increase in accommodations attributable to the ADAAA.
In view of the numerous changes to the ADA stemming from the ADAAA and the final regulations, the commission anticipates an increase in the number of EEOC charges and lawsuits filed � an increase that has already been seen. Disability discrimination charges filed with the EEOC have steadily increased since the ADAAA went into effect Jan. 1, 2009. In 2008, the number of discrimination charges filed with the EEOC totaled 19,453. The number of discrimination charges increased to 21,451 charges in 2009 and 25,165 charges in 2010.
PRACTICAL CONSIDERATIONS
In light of the ADAAA�s expanded �disability� definition and the new regulatory environment, employers should consider the following best practices:
1. Audit and review policies and procedures to focus on the reasonable accommodation/undue hardship analysis and to determine whether the employer has properly obtained and possesses relevant medical documentation to support a requested accommodation.
2. Implement and apply a thorough and well-documented accommodation procedure that satisfies the ADAAA�s obligation for an employer to engage in an �interactive process� with the employee when an accommodation is requested.
3. Conduct regular and intensive management and employee training concerning �disability� identification, accommodation, and communication. Managers and supervisors must understand their duties to analyze objective facts in making employment decisions without regard to an individual�s impairment.
If you have any questions regarding the ADAAA final regulations or their application, call Dean J. Schaner at 713-547-2044 or email him at
[email protected].
Dean Schaner has exclusively practiced employment and labor litigation for more than 22 years, representing employers in all aspects of unfair competition, discrimination, retaliation, whistleblower, ERISA, wrongful termination and tort/contract claims arising out of the employment relationship. Schaner has tried a wide variety of cases in the federal and state courts, including the successful defense of an energy company in a class action case in which plaintiffs sought $30 million in damages. He is certified by the Texas Board of Legal Specialization as a labor and employment specialist. Schaner has been named as a Texas Super Lawyer in the Super Lawyer issues of
Texas Monthly in Employment Litigation Defense (2003-2010). Schaner is the editor-in-chief of the
Texas Employment Law Desk Reference, 5th Edition.
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