March 25th, the U.S. Equal Employment Opportunity Commission (EEOC) published the final, amended regulations adopted following the passage of the ADA Amendments Act of 2008 (ADAAA). The new regulations become effective on June 24, 2011, 60 days from publication. The ADAAA is not retroactive, however; it applies only to discriminatory acts that occurred on or after January 1, 2009.
In large measure, the amendments will make it easier for individuals to establish their entitlement to the protections of the ADA. The ADAAA was Congress’s response to several U.S. Supreme Court decisions that limited the protection of the Americans with Disabilities Act (ADA) for many individuals with diseases or conditions such as cancer, diabetes and epilepsy. At issue in those decisions was the proper construction of the definition of “disability” under the ADA.
The ADA’s definition of disability was unchanged by the ADAAA. It remains:
- a physical or mental impairment that substantially limits one or more major life activities;
- a record (or past history) of such an impairment; or being regarded as having a disability
However, the ADAAA states that this definition of disability must be interpreted in favor of broad coverage. The EEOC’s new regulations provide rules of construction for use in determining whether an individual has a disability, and is therefore entitled to the protections offered by the ADA.
The new rules of construction:
- Define “physical or mental impairment” as any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine, and also any mental or psychological disorder, such as intellectual disability (formerly termed mental retardation), organic brain syndrome, emotional or mental illness, and specific learning disabilities.
- Require a broad construction, in favor of expansive coverage, of the term “substantially limits”;
- Lower the threshold for finding a “substantial limitation,” as the impairment no longer has to prevent or severely or significantly restrict a major life activity to be considered “substantially limiting.”
- Expand the scope of “major life activities” to include the operation of major bodily functions, including functions of the immune system, special sense organs and skin, normal cell growth, digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. The regulations also state that major bodily functions include the operation of an individual organ within a body system ( e.g., the operation of the kidney, liver, or pancreas).
- Require the determination of substantial limitation to be made without regard to the ameliorative effects of mitigating measures (such as medication or hearing aids), except that eyeglasses or contact lenses may be considered.
- Include impairments that are episodic or in remission, provided the impairment would be substantially limiting when present.
- Require that the positive effects from an individual’s use of one or more “mitigating measures” (other than ordinary eyeglasses and contact lenses) be ignored in determining if an impairment substantially limits a major life activity. However, mitigating affects may still be considered for purposes other than determining whether the impairment is substantially limiting.
- Construe an impairment that is episodic or in remission to be a disability, if, while active, the impairment would substantially limit a major life activity.
- Include specific types of impairments that should easily be concluded to be disabilities and examples of major life activities (including major bodily functions) that the impairments substantially limit. The impairments include: deafness, blindness, intellectual disability (formerly known as mental retardation), partially or completely missing limbs, mobility impairments requiring use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia.
The regulations also confirm that an individualized assessment of whether an impairment substantially limits a life function remains necessary.
The new regulations also make it easier for individuals to establish coverage under the “regarded as” part of the definition of “disability.” The analysis must be directed at how the individual was treated, due to an impairment, rather than the employer’s belief regarding the impairment.