We all have a legally recognized disability. Well, that’s an exaggeration, but only a little. The Equal Employment Opportunity Commission recently issued final rules interpreting the Americans with Disabilities Act Amendments Act of 2008, effective May 24, 2011. The regulations follow the ADAAA’s objective to broaden coverage of the Act and clearly change the normal focus from whether an employee has a disability as defined in the statute to whether the employer has satisfied its obligation to accommodate a disability.
The actual statutory definition of disability is the same as it was under the Americans with Disabilities Act: (1) a physical or mental impairment which substantially limits one or more major life activities, (2) a record of such an impairment, or (3) being regarded as having such an impairment. The ADAAA, however, indicates that “substantial limitation” is not intended to be a demanding standard.
Major life activities include, but are not limited to:
- Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working; and
- The operation of a major bodily function, including functions 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 operation of a major bodily function includes the operation of an individual organ within a body system.
In the past, it was generally accepted that the determination of whether a particular condition constituted a legal disability required an “individualized assessment.” However, under the new regulations, the EEOC lists a number of conditions that will “virtually always” constitute a disability. Such conditions include cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, major depressive disorder, bipolar disorder, obsessive compulsive disorder, schizophrenia and autism.
In addition, the regulations specify that an impairment which lasts for any duration may be a covered disability. Thus, episodic conditions and even conditions actually in remission may be a disability if they would be disabilities when active. Guidance to the regulations include a non-exhaustive list of such conditions, including epilepsy, cancer, post-traumatic stress order, hypertension, diabetes, asthma, major depressive disorder, bipolar disorder, schizophrenia and multiple sclerosis.
The new regulations follow provisions of the ADAAA which make clear that whether an impairment substantially limits a major life activity is determined without considering whether the “disability” can be overcome by mitigating measures, for example, medication. The sole exception to this concept is for conditions which can be mitigated by use of ordinary eyeglasses or contact lenses.
An individual who, because of the use of a mitigating measure, has experienced no limitations, or only minor limitations, related to the impairment may still be an individual with a disability, where there is evidence that in the absence of an effective mitigating measure the individual’s impairment would be substantially limiting. For example, someone who began taking medication for hypertension before experiencing substantial limitations related to the impairment would still be an individual with a disability if, without the medication, he or she would now be substantially limited in functions of the cardiovascular or circulatory system.
The determination of whether or not an individual’s impairment substantially limits a major life activity is unaffected by whether the individual chooses to forgo mitigating measures. For individuals who do not use a mitigating measure (including, for example, medication or a reasonable accommodation that could alleviate the effects of an impairment), the availability of such measures has no bearing on whether the impairment substantially limits a major life activity.
The regulations also provide greater protection for individuals who are “regarded as” disabled. Such an individual is protected if the employer has a perception that he or she has an impairment, regardless of whether that impairment is perceived as an actual disability. Note that employers need not reasonably accommodate an employee with a “regarded as” disability, although they must accommodate employees with an actual disability or a “record of a disability,” unless such accommodation would be an undue burden.
The ADAAA sought to grant greater protection of the individuals with disabilities and to reverse a series of restrictive Supreme Court decisions. The new EEOC regulations implementing the ADAAA arguably go even further. There is no question that employers should interpret the concept of “disability” broadly and should assume that many more conditions may now be considered a legal disability. The EEOC obviously intends that employers should spend less time worrying about whether a condition constitutes a disability, and instead focus on reasonable accommodation policies and procedures. iBi