EEOC’s ADA Amendment Act Regulations Finalized

March 29, 2011

On Friday, March 25, 2011, the EEOC published its finalized regulations governing the Americans with Disabilities Act Amendment Act (ADAAA). The final regulations may be viewed at Briefly, the highlights of the new regulations are as follows:

“Substantially Limits”

: The new regulations significantly relax the definition of what impairments “substantially limit” major life activities. The Amendments Act also clearly stated that the Supreme Court’s interpretation of the term “substantially limits” as meaning “severely restricts” was too high of a standard and the ADAAA intended to lower that standard. While the Act itself did not offer guidance as to where that standard should be, the proposed regulation specifically states that in order to be “substantially limiting” an impairment need not severely restrict or significantly restrict performance of a major life activity. Certainly, this is a far lower standard than that previously held by the Supreme Court and the EEOC. The proposed regulations do identify that temporary, non-chronic impairment of short duration with little or no residual effects such as a cold or common flu, a sprained joint or a broken bone that is expected to heal completely will usually not substantially limit a major life activity. These conditions could be viewed as both minor and transitory but under the language of the regulations, few other ongoing conditions will likely be excluded if they are found to limit a major life activity or bodily function. They require courts to ignore whether “mitigating measures,” such as medication, ameliorate an impairment’s effects. Going forward, the evaluation of a “substantial limitation” must be based on the individual’s NON-MEDICATED condition. The regulations go on to state that an impairment does not have to “prevent, or significantly or severely restrict” a major life activity to be considered a disability.

Episodic Impairments

: The proposed regulations also indicate that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. The EEOC then goes on to list several examples such as epilepsy, cancer, depression, hypertension, asthma, bipolar disorder, and post-traumatic stress disorder.

Examples of Impairments Qualifying As Disabilities

: The new regulations also list several impairments that will ordinarily qualify as disabilities. They include “deafness, blindness, intellectual disability (formerly known as mental retardation), partially or completely missing limbs, mobility impairments requiring use of a wheelchair (a mitigating measure), autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia.” In the past, there were no “per se” disabilities.

“Major Life Activities”

: The EEOC’s regulations incorporate the ADAAA’s expanded definition of major life activities, but have also added reaching, sitting and interacting with others as major life activities. In addition, the regulations have expanded the list of major bodily functions to include hemic, lymphatic and musculoskeletal systems.

“Regarded As” Having a Disability

: The proposed regulations provide several examples of transitory and minor impairments, such as a broken or sprained bone that is expected to heal normally. The regulations also provide examples of impairments that the EEOC would not consider minor and transitory, such as Hepatitis C or heart disease. The “regarded as” employee is not entitled to reasonable accommodation and must establish he or she is “qualified” to do the job.

Five Rules of Construction

: The new regulations also detail five rules of construction for determining whether an impairment limits a major life activity.

1. Focus on discrimination-not disability. In ADA cases, the focus should be on whether or not discrimination occurred and not on whether the individual meets the definition of disability.

2. Rejection of Supreme Court. An individual whose impairment substantially limits a major life activity need not also demonstrate a limitation in the inability to perform “activities of central importance to daily life.”

3. One impairment is enough. An impairment that substantially limits one major life activity need not limit any other major life activities or impact work to be considered substantially limiting.

4. Use your common sense. When comparing an individual’s limitation to determine whether or not it is substantially limited, it should be compared to the general population and a common sense analysis without resorting to scientific or medical evidence may be followed.

5. What is transitory? The regulation clarifies that impairments that last for fewer than six months may still be substantially limiting. Therefore, it is clear that at this point in time, the EEOC is not adopting a bright line rule that conditions lasting six months are transitory in nature and therefore not covered.

The EEOC also explains that an employer may regard an individual as disabled if it takes an action based on a symptom of an impairment. The EEOC provides examples of how this applies. In one example, an employer refuses to hire someone with a facial tic who does not know the facial tic is cause by Tourette’s Syndrome. The EEOC would consider the employer in this hypothetical to have regarded the individual as disabled even though it did not know the individual had Tourette’s.