LEGISLATIVE HISTORY AND PURPOSE OF RECENT CHANGES

In response to recent Supreme Court cases narrowly interpreting the disability definition in the Americans with Disabilities Act (ADA), Congress passed the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) to ensure that individuals with a wide range of disabilities and limitations qualify for the Act’s protections. Final Equal Employment Opportunity Commission (EEOC) regulations implementing the ADAAA became effective on May 24, 2011.

The purpose of these changes was to expand the application of the legislation’s disability definition, ensuring that more individuals will be covered. However, rather than substantially altering key definitions in the ADA, the Amendment instead sets forth new guidelines for interpreting and implementing those definitions. Therefore, while many key features of the ADA remain the same, employers need to be cognizant of how these new interpretation guidelines may affect disability determinations and claims assessments.

EXECUTIVE SUMMARY OF CHANGES

This Amendment leaves intact most aspects of the ADA – new changes affect the definition of “disability,” but the meaning of other key terms, such as “qualified,” “direct threat,” “reasonable accommodation,” and “undue hardship,” remain the same under the ADAAA. Rather than actually making significant changes to key definitions in the Act, the Amendment establishes a set of rules of construction that are to be used in determining how the definition of “disability” is interpreted and applied. The Amendment alters three important aspects of the ADA:

No Minimum Duration

In the past, impairments lasting fewer than “several months” were considered too short term to meet the disability definition, but under the new regulations, minimum duration requirements for many types of claims have been eliminated.

Virtually Always Disabilities

The EEOC has identified several impairments that will “virtually always” be found to be substantially limiting under the disability definition.

“Regarded As” Coverage

The “regarded as” prong of the disability definition has been broadened so that an individual need only show that he or she was subjected to adverse employment action on the basis of an actual or perceived physical or mental impairment.

DEFINING DISABILITIES UNDER THE ADAAA

The ADAAA takes a three-pronged approach in defining a disability:

• Actual Disability: a physical or mental impairment that substantially limits one or more major life activities
• Record of: a record of physical or mental impairment that substantially limits a major life activity
• Regarded as: when a covered entity takes an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory and minor

Under this framework, an individual need satisfy only one prong to qualify for ADA protection, but the level of protection afforded to individuals under the third prong differs from the protections afforded under the first two prongs. For example, claims relating to reasonable accommodations MUST be brought under the “actual disability” or “record of” prongs, whereas claims for other types of adverse employment action may be brought under the “regarded as” prong.

The Amendment leaves the definition of “impairment” largely unchanged, although it now includes conditions affecting immune and circulatory systems. The definition of “major life activities” was expanded to include bodily functions, as well as activities such as caring for oneself, performing manual tasks, seeing/hearing, eating, sleeping, communicating, learning, and interacting with others, among many other activities that had previously been captured by the definition. Please note that this is a non-exhaustive list of “major life activities,” and that many other activities would also fall within the definition.

APPLYING THESE CHANGES – WHAT DOES “SUBSTANTIALLY IMPAIRS” MEAN IN PRACTICE?

Rather than providing a specific definition for “substantially impairs,” the EEOC has instead set forth nine rules of construction intended to outline the contours of the concept:

• Many more individuals will be substantially limited under the Amendment because broad construction of disability definitions is preferred
• For purposes of applying key definitions, the appropriate comparison is to most people in the general population
• Assessing whether an individual is substantially limited should be a quick process
• Disability is still determined on a case by case basis
• Scientific, medical, or statistical evidence is usually not required to make the disability assessment
• Mitigating measures are not considered in making disability determinations (with the exceptions of glasses and contact lenses)
• Past limitations will be considered as if active, so that episodic disabilities and conditions currently in remission will also qualify
• Only one major life activity need be substantially limited to qualify
• No specific timeframe applies

Additionally, the EEOC has compiled a nonexhaustive list of impairments that will generally limit a major life activity and therefore meet the disability definition:

• Deafness
• Blindness
• Intellectual disability (formerly mental retardation)
• Partially or completely missing limbs or mobility impairments requiring the use of a wheelchair
• Autism
• Cancer
• Cerebral palsy
• Diabetes
• Epilepsy
• Human Immunodeficiency Virus (HIV)
• Multiple sclerosis
• Muscular dystrophy
• Major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia

It is important to note that while the “substantially impairs” language applies to both the “actual disability” and “record of” prongs, it does not apply to the “regarded as” prong. Rather, to be covered under the “regarded as” prong, an individual need only show that an employer discriminated against him because of an actual or perceived medical condition, and need not demonstrate any substantial impairment.

ADDITIONAL REQUIREMENTS FOR ADA PROTECTIONS TO APPLY

Just because an individual has a qualifying disability does not mean that his or her employer has engaged in unlawful discrimination. An individual must also show that he or she is qualified for the job, and even when an individual meets the disability definition, a variety of defenses may be available to an employer defending against an ADA claim. Importantly, an employer will be liable under the ADA only if the individual proves unlawful discrimination (in addition to showing that he or she had a qualifying disability). The ADAAA does not change this ultimate discrimination inquiry, but it does make it easier for an individual to meet the threshold requirement of demonstrating that he or she had a qualifying disability.

A NOTE ON REASONABLE ACCOMMODATIONS

A qualifying entity will be required to make reasonable accommodations only when either the “actual disability” or “record of” prongs have been satisfied. No accommodations are required for an individual qualifying under the “regarded as” prong, although employers may not take other adverse employment action against these individuals. Additionally, an employee must show that the disability or past disability requires a reasonable accommodation, and the ADA allows for a flexible response to reasonable accommodation requests:

• Employers may choose between effective accommodations, and are not always required to provide the requested accommodation
• Employers need not provide accommodations that will impose an undue hardship
• Employers need not provide personal use items that are required by employees to accomplish daily activities both on and off the job
• Employers do not have to make accommodations for individuals who are not otherwise qualified for the job
• Employers need not remove essential functions, create new jobs, or lower production standards as an accommodation

PRACTICAL TIPS FOR COMPLYING WITH AMENDED ADA REQUIREMENTS

Disability determinations should not be the primary focus

Employers should not spend a lot of time analyzing whether employees meet the statutory definition of disabled, and should instead focus on the accommodation aspect.

Do not confuse the definitions of disability and accommodation

A reasonable accommodation under the Act may or may not relate to the major life activity that is substantially limited by the disability, and the two concepts should be considered separately. For example, an if an employee with breast cancer (an impairment that substantially limits normal cell growth) also experiences swelling in her right arm because of the treatment, she is entitled to an accommodation for typing, even though her specific impairment is only indirectly linked to that accommodation.

Make decisions that are job-related and consistent with business necessity

Because it is the responsibility of employees to let their employers know about any disabilities that may affect job performance or conduct, there is usually no reason for employers to bring up medical issues. Instead, until an accommodation request is made, employers should apply their policies in a uniform manner rather than assuming that an employee has a medical issue or disability.

Train frontline supervisors and managers

Frontline managers and supervisors usually have the most day-to-day contact with employees, and should therefore be trained to recognize accommodation requests, refrain from discussing employees’ medical conditions (unless relevant), and know who to contact in the organization for further assistance.

Document actions and decisions

Because the employer’s response to a disability (rather than the disability itself) is the current focus of the amended ADA, it is important to carefully document any actions or decisions made with regard to an individual, as these may prove very helpful should that individual later assert a discrimination claim.