Posted on March 31, 2011 by Meghan O. Offer

U.S. Regulations Shift Focus from Disability to Accommodation

EEOC Publishes Long-Awaited Regulations Under the ADA Amendments Act

More than two years after the Americans with Disabilities Amendments Act (“ADAAA”) became effective, the EEOC has issued Final Rules and Regulations (“Regulations”) that were published in the March 25, 2011 Federal Register. The Regulations, which become effective May 24, 2011, further demonstrate the ADAAA’s objective of broadening employee coverage to the maximum extent permitted. They also continue to shift focus from whether an employee is “disabled” to whether an employer has satisfied its legislative obligations to accommodate without discriminating. 

Although the definition of “disability” remains whether a physical or mental impairment exists that substantially limits one or more major life activities; a record of such an impairment; or being regarded as having such an impairment; how “disability” should be interpreted by employers has changed.  

Coverage under the ADAAA continues to require proof of a substantial limitation, but the Regulations specify that this is not intended to be a demanding standard. The EEOC seeks to implement Congressional intent to establish consistent and workable standards by establishing “rules of construction,” including the requirements that:

  • A lower degree of functional limitation be applied
  • “Substantially limits” be read broadly in favor of expansive coverage
  • Determining whether an impairment substantially limits a major life activity be made without regard to the ameliorative effects of mitigating measures (except for “ordinary eyeglasses or contact lenses”)
  • Episodic impairments or impairments in remission still qualify as disabilities if they would when active

The Regulations also expand the definition of "major life activities" through two non-exhaustive lists. The first list focuses on activities, some of which the EEOC has already recognized, such as walking. But some are new and include sleeping, concentrating, thinking and reading. The second list focuses on major bodily functions, such as the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. 

In another broadening of coverage, the Regulations make no mention of any six-month durational requirement for establishing a disability, and instead specify that an impairment for any duration may be a covered disability.   

The Regulations also elaborate on the ADAAA’s coverage of individuals with episodic conditions or conditions in remission. They offer a non-exhaustive list of covered conditions, including cancer, post-traumatic stress disorder, major depressive disorder and multiple sclerosis.

Despite acknowledging that the determination of a disability requires an "individualized assessment," the EEOC lists conditions that will "virtually always" constitute a disability. These include cancer, cerebral palsy, diabetes, epilepsy, multiple sclerosis, major depressive disorder, bipolar disorder, obsessive compulsive disorder and autism. 

“Regarded as” claims also gain support under the Regulations. Such claims may be based upon an alleged perception of impairment, irrespective of whether that impairment is perceived as an actual disability. Though employers need not reasonably accommodate an employee with a “regarded as” disability, they must accommodate employees with a “record of disability,” unless they establish that it would be an undue burden.

Employers consequently should interpret “disability” broadly and focus on properly and fully participating in the interactive process. Employers should use the time before the Regulations become effective to review and sharpen their reasonable accommodation policies and procedures, and to provide training to management, human resources and legal staff on the ADAAA and these EEOC Regulations. 

Feel free to direct any questions or concerns about the ADAAA and the Regulations to the authors of this Alert, or the Reed Smith attorney with whom you work regularly.

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Posted on October 30, 2009 by James A. Burns, Jr.

EEOC Revises Mandatory Workplace Poster

U.S. employers with 15 or more employees must post workplace notices to inform applicants and employees about their rights under federal anti-discrimination laws. The Equal Employment Opportunity Commission (EEOC) has recently published an updated version of its required “Equal Employment Opportunity is The Law” poster, updated to refer to the employment provisions of the Genetic Information Nondiscrimination Act (GINA) that will go into effect November 21, 2009, as well as changes resulting from the ADA Amendments Act of 2008 that took effect in January.

All employers should replace their existing federal EEO poster with the new version, or add a new supplementary poster, also available from the EEOC. Links to the new poster and the supplement, as well as instructions on how to order multiple printed copies from an EEOC clearinghouse, can be found at the EEOC's website. The EEOC says that Spanish, Chinese, and Arabic versions of the posters will become available before GINA takes effect.

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Posted on February 19, 2009 by E. David Krulewicz

Disabling the ADAAA

This post was written by Stephanie Wilson and E. David Krulewicz.

On January 1, 2009, the ADA Amendments Act of 2008 (the “ADAAA”) took effect, bringing with it what many expect to be sweeping reforms to the landscape of federal disability discrimination law. This Act, which was widely lauded by both members of the House of Representatives and the Senate, was signed into law by President Bush on September 25, 2008. Employers who are not fully familiar with the changes the ADAAA brings must quickly learn the nuances of the new law – and the impact it has on the meaning of a “disabled employee” – as it will likely open the flood gates for a new wave of employees seeking reasonable accommodations and the number of discrimination lawsuits. There is good news, however, for employers and attorneys in New Jersey, as these amendments essentially conform the ADA to the “handicap” protections mandated by New Jersey Law Against Discrimination (“LAD”) and interpretative New Jersey Supreme Court decisions.

Click here to read the full article.

This article was originally published in the February 2009 issue of New Jersey Lawyer Magazine, a publication of the New Jersey State Bar Association, and is reprinted here with permission.

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Posted on September 26, 2008 by James A. Burns, Jr.

Broad Expansion of ADA Rights Poised to Become Law

This post was written by James A. Burns, Jr. and John T. McDonald.

Yesterday, September 25, 2008, President Bush signed the ADA Amendments Act of 2008 (“ADAAA”), which will expand the protections afforded by the Americans with Disabilities Act (“ADA”). The ADAAA passed the Senate by unanimous consent on September 11 and was approved by a voice vote in the House of Representatives less than a week later. Its significant changes to the ADA will take effect January 1, 2009. 

The ADA prohibits discrimination against a qualified individual with a “disability,” defined as a physical or mental impairment that substantially limits one or more of the individual’s major life activities. The ADAAA is designed to reverse several rulings by the United States Supreme Court that the law describes as having improperly restricted ADA coverage by narrowly interpreting the term “disability.” In one such case, the Court held that when deciding whether an individual is protected by the ADA, courts need to take into account mitigating measures that might ameliorate the effects of the condition, such as medication or other treatment. In other cases, the Court strictly enforced the requirement that an impairment substantially limit a “major life activity” to be a covered disability, and narrowly construed what sort of activities would be considered “major life activities” for purposes of the ADA. 

The ADAAA explicitly rejects these decisions, directing courts to construe the term “disability” in favor of “broad coverage…to the maximum extent permitted by the terms of this Act.” Under the new law, the ameliorative effects of mitigating measures (such as medication, medical equipment, prosthetics, hearing aids, assistive technology, or reasonable accommodations) cannot be taken into account in deciding if an individual has a disability, except for ordinary eyeglasses or contact lenses. The ADAAA also requires the EEOC to issue new regulations interpreting when a condition can be said to “substantially limit” an individual, with the clear direction that those regulations should be more expansive than the Court’s decisions. In writing those rules, the EEOC is expected to borrow heavily from the House’s version of the ADAAA, which said that an individual’s condition “substantially limits” him or her in a major life activity if it “materially restricts” the individual, meaning that it need not rise to the level of a “severe” or “significant” restriction, but must be more serious than a “moderate” impairment. Congress thus made clear that it wants to lower the bar set by the Supreme Court for what sort of limitation is required to be protected by the ADA, and thereby broaden the group of individuals who come within its scope. 

The ADAAA also reverses the Supreme Court’s relatively narrow view of what constitutes a “major life activity.” The new law redefines the term by setting forth a broad, illustrative, and non-exhaustive list of activities that fall within its scope, including caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. The ADAAA also specifies that “the operation of a major bodily function,” such as functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, or reproductive functions, will also be considered major life activities under the ADA. Thus, anyone with a condition that substantially limits even one of these major life activities will be protected by the ADA. Further broadening the coverage of the Act, the ADAAA also makes clear that impairments that are episodic or in remission are still protected disabilities if, when active, they would substantially limit a major life activity. 

The new law also changes when an individual will be treated as protected by the ADA because he or she is “regarded as” disabled by an employer. The ADAAA says that an individual will be “regarded as” disabled if he or she was subjected to an action prohibited by the ADA “because of an actual or perceived physical or mental impairment,” regardless of whether that impairment limits or is perceived to limit a major life activity. At the same time, however, if an individual has only a “transitory” impairment, defined as one with “an actual or expected duration of 6 months or less,” he or she will not be “regarded as” disabled. The ADAAA also makes clear that employers must provide reasonable accommodation only to individuals who have an impairment that substantially limits a major life activity, not those who are merely “regarded as” disabled. 

The ADAAA will significantly expand the number of persons protected from discrimination under federal law. Employers operating in states that may already have more restrictive laws, such as New York, New Jersey and California, may not experience much of a change. But for employers in other states, the ADAAA’s expansion of who is protected by the ADA will have a significant impact, requiring employers to consider the need for reasonable accommodations of a significantly greater number of applicants and employees. All employers should thus review this new legislation and be prepared for it to take effect on January 1, 2009.
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