Disabled or Not Disabled...That Is No Longer the Question: The ADAAA Necessitates a Shift In Focus for Employers

The Americans with Disabilities Act of 1990 (ADA), on the books for nearly two decades, was amended by the ADA Amendments Act of 2008 (ADAAA). When the ADAAA went into effect January 1, 2009, the Equal Employment Opportunity Commission (EEOC) was directed to amend the ADA's implementing regulations to reflect the changes made by the ADAAA. On March 25, 2011, those Final Regulations went into effect, thus raising a number of important questions for employers.

Q: We have a small company. Are we required to comply with the Final Regulations?

A: Like the ADA, the ADAAA and the Final Regulations apply to all private companies with 15 or more employees. It is important to note, however, that state statutes protecting individuals with disabilities may apply to companies with as few as one employee and are often interpreted in much the same way as their federal counterpart.

Q: How does the ADAAA affect courts' and the EEOC's interpretations of the ADA?

A: When Congress enacted the ADAAA, it rejected both the EEOC's and many courts' narrow interpretations of the term "disability." Under the ADAAA and the Final Regulations, individuals who wish to seek the law's protection will be able to much more easily demonstrate that they have a "disability." As a result, the EEOC anticipates that the focus of ADA claims will shift to the merits of the case itself, rather than an analysis of the threshold question of whether a particular individual can satisfy the definition of the term "disability."

Q: How is "disability" defined under the Final Regulations?

A: The ADAAA and the Final Regulations define "disability" as follows:

1. A physical or mental impairment that "substantially limits" one or more major life activities (i.e., an "actual" disability), or
2. A record of a physical or mental impairment that "substantially limited" a major life activity (i.e., a "record of" a disability), or
3. When an individual is subjected to an employment action prohibited by the ADA because of an actual or perceived impairment, regardless of whether that impairment "substantially limits" a major life activity (i.e., "regarded as" having a disability).

Q: How do the Final Regulations define "major life activities"?

A: The ADAAA includes a specific (but non-exhaustive) list of "major life activities," including seeing, hearing, eating, sleeping, walking, standing, sitting, breathing, learning and reading, as well as "major bodily functions." The Final Regulations go even further, including a non-exhaustive list that is more expansive than that found in the text of the ADAAA, including sitting, reaching, interacting with others and "operation of an individual organ within a body system."

Q: Do the Final Regulations offer any guidance regarding what it means for an impairment to "substantially limit" a major life activity?

A: Just as the ADAAA expanded the definition of "major life activities," it also expanded the definition of "substantially limits." The Final Regulations set forth various "rules of construction" to be applied when determining whether an impairment "substantially limits" a major life activity, including the following:

1. The term "substantially limits" requires a lower degree of functional limitation than the standard previously applied by the courts.
2. An impairment does not need to prevent or significantly restrict a major life activity to be considered "substantially limiting." However, not every impairment will constitute a "disability."
3. The term "substantially limits" should be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA.
4. The determination of whether an impairment "substantially limits" a major life activity requires an individualized assessment, just as it did under the ADA.
5. With one exception (ordinary eyeglasses or contact lenses), the determination of whether an impairment "substantially limits" a major life activity must be made without regard to the ameliorative effects of mitigating measures, such as medication, hearing aids and prosthetic limbs.
6. An impairment that is episodic (such as epilepsy, hypertension, asthma, diabetes or major depressive disorder) or in remission is a "disability" if it would "substantially limit" a major life activity when active.
7. In keeping with Congress' direction that the primary focus of the ADA is on whether discrimination occurred, the determination of whether an individual has a "disability" should not require extensive analysis.

Q: What is the practical impact of the Final Regulations on employers?

A: Convincing a court or the EEOC that an individual does not have a "disability" is likely an analysis of the past. The Final Regulations make it clear that the focus must shift to whether there has actually been a violation of the ADAAA, rather than whether an individual is merely protected by the ADAAA.

With that in mind, employers should shift their focus to the following:

1. Engaging in an interactive process with an individual who asks for reasonable accommodation, 
2. Documenting the interactive process, all accommodations requested and made, and any assessment that the accommodation requested by the individual poses an undue hardship, and
3. Documenting legitimate, non-discriminatory reasons for adverse actions taken against any individual who is disabled or claims to be disabled.