Final Rule Implementing Employment Provisions of the ADAAA Released

The Equal Employment Opportunity Commission (EEOC) has released its long-awaited final rule (pdf) implementing the equal employment provisions of the Americans with Disabilities Act Amendments Act (ADAAA). The ADAAA, which was signed into law on September 25, 2008, significantly expands the definition of “disability”, enabling more individuals to be covered by the ADA. As discussed in the final rule, the ADAAA retains the basic definition of disability contained in the ADA, which considers an individual disabled if he or she (a) has an impairment that substantially limits one or more major life activities; (b) has a record of such an impairment; or (c) is regarded as having such an impairment. The ADAAA, however, expands the interpretation of these elements making it “much easier for individuals seeking the law’s protection to demonstrate that they meet the definition of ‘disability.’” To that end, the final rule revises the prior ADA regulations, and includes new interpretive guidance as an appendix to the rule.

These regulations, which take effect 60 days after their publication in the March 25, 2011 edition of the Federal Register, apply to all private and state and local government employers with 15 or more employees, employment agencies, labor organizations, and joint labor-management committees.

Enactment of bipartisan ADAAA involved negotiations with the employer and disability communities. A number of employer groups expressed concerns that the EEOC’s proposed rule, which was published on September 2, 2009, deviated from the carefully-crafted legislative compromise. The final rule addresses a number of these concerns to some degree. As discussed in an EEOC fact sheet on the new rule, the final regulations modify or remove language that groups representing employer or disability interests had found confusing or had interpreted in a manner not intended by the EEOC. For example:

  • Instead of providing a list of impairments that would “consistently,” “sometimes,” or “usually not” be disabilities (as had been done in the proposed rule), the final regulations provide the nine rules of construction to guide the analysis and explain that by applying those principles, there will be some impairments that virtually always constitute a disability. The final rule also provides examples of impairments that should easily be concluded to be disabilities, including epilepsy, diabetes, cancer, HIV infection, and bipolar disorder.
  • Language in the proposed rule describing how to demonstrate that an individual is substantially limited in “working” has been deleted from the final regulations and moved to the appendix (consistent with how other major life activities are addressed). The final regulations also retain the existing familiar language of “class or broad range of jobs” rather than introducing a new term, and they provide examples of individuals who could be considered substantially limited in working. The appendix states that “[i]n the rare cases where an individual has a need to demonstrate that an impairment substantially limits him or her in working, the individual can do so by showing that the impairment substantially limits his or her ability to perform a class of jobs or broad range of jobs in various classes as compared to most people having comparable training, skills, and abilities.” In addition, the appendix explains that a “class” of work may be determined by reference to the nature of the work (e.g., commercial truck driving or assembly line jobs), or by reference to job-related requirements that an individual is limited in meeting (e.g., jobs requiring extensive walking, prolonged standing, and repetitive or heavy lifting). Demonstrating a substantial limitation in performing the unique aspects of a single specific job is not sufficient to establish that a person is substantially limited in the major life activity of working.
  • The final rule retains the concepts of “condition, manner, or duration” that the proposed rule had proposed to delete and explains that while consideration of these factors may be unnecessary to determine whether an impairment substantially limits a major life activity, they may be relevant in certain cases. This assessment may include consideration of the difficulty, effort, or time required to perform a major life activity; pain experienced when performing a major life activity; the length of time a major life activity can be performed; and/or the way an impairment affects the operation of a major bodily function.

Other highlights of the final rule include the following:

  • The rule defines “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. The rule’s definition also covers any mental or psychological disorder, such as intellectual disability (formerly termed mental retardation), organic brain syndrome, emotional or mental illness, and specific learning disabilities.
  • As for the final rule’s definition of “impairment,” immune and circulatory systems have been added to the list of body systems that may be affected by an impairment, as these systems are specifically mentioned in the ADAAA’s examples of major bodily functions.
  • The definition of “major life activities” is expanded. The final rule explicitly states that “in determining other examples of major life activities, the term ‘major’ shall not be interpreted strictly to create a demanding standard for disability. . . . Whether an activity is a ‘major life activity’ is not determined by reference to whether it is of ‘central importance to daily life.’” To this end, the final rule provides non-exhaustive lists of what constitutes a major life activity. Such activities include 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. The rule also stipulates that performing major bodily functions – which include the operation of an individual organ within a body system (e.g., the operation of the kidney, liver, or pancreas) – constitutes a major life activity. These include 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. According to a Q&A issued by the EEOC on the final rule, “[a]s a result of the ADAAA’s recognition of major bodily functions as major life activities, it will be easier to find that individuals with certain types of impairments have a disability.”
  • The final regulations adopt nine “rules of construction” to use when determining if an individual’s impairment substantially limits a major life activity. As discussed in an EEOC fact sheet, the rules of construction are to be used “to guide the analysis and explain that by applying those principles, there will be some impairments that virtually always constitute a disability.” These rules include the following:
    • The phrase “substantially limits” is to be construed broadly in favor of the most expansive coverage permissible under the Act.
    • Although not every impairment will constitute a disability, an impairment need not prevent or severely or significantly limit a major life activity to be considered “substantially limiting.”
    • The determination of whether an impairment substantially limits a major life activity requires an individualized assessment, and should not require an extensive analysis, as the “primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual’s impairment substantially limits a major life activity.”
    • The determination of whether an impairment substantially limits a major life activity requires an individualized assessment, although the standard is lower than that applied prior to the ADAAA.
    • Although determination of whether an impairment substantially limits a major life activity as compared to most people will not usually require scientific, medical, or statistical evidence, such evidence may be used if appropriate.
    • Mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a disability.
    • Impairments that are episodic or in remission can be considered disabilities if they substantially limit a major life activity when active.
    • An individual need only be substantially limited, or have a record of a substantial limitation, in one major life activity to be covered under the first or second prong of the definition of “disability.”
    • The six-month “transitory” part of the “transitory and minor” exception to the “regarded as” coverage does not apply coverage under the “actual disability” or “record of” coverage.
  • Under the final rule, a covered entity “regards” an individual as having a disability if it takes an adverse action against the individual (failure to hire or promote, etc.) based on an individual’s impairment or on an impairment the covered entity believes the individual has unless the impairment is transitory (lasting or expected to last for six months or less) and minor. Therefore, an employer would be able to defend against such a claim by asserting that the impairment at issue, whether actual or perceived, is both transitory and minor. The relevant inquiry is whether the actual or perceived impairment on which the employer’s action was based is objectively “transitory and minor,” not whether the employer claims it subjectively believed the impairment was transitory and minor.
  • The EEOC received many comments about the position in the proposed rule that actions taken because of an impairment’s symptoms or because of the use of mitigating measures constitute actions taken because of an impairment under the “regarded as” prong. The Commission notes that it believes that this “requires a more comprehensive treatment than is possible in this regulation.” Therefore, the final regulations do not explicitly address the issue of discrimination based on symptoms or mitigating measures under the “regarded as” prong. However, the EEOC explains that: “No negative inference concerning the merits of this issue should be drawn from this deletion. The Commission’s existing position, as expressed in its policy guidance, court filings, and other regulatory and subregulatory documents, remains unchanged.”
  • An individual must have an actual disability or record of an actual disability in order to be qualified for a reasonable accommodation.

More information on the new rule, including a fact sheet and Q&As, can be found on the EEOC’s ADAAA web page.

To discuss what the ADAAA final rule means for employers, Littler will be hosting a webinar on April 4, 2011. Registration information is available here.

For more detailed information on this final rule and its implications for employers, see Littler's ASAP:  EEOC Issues Regulations Under the ADA Amendments Act by Margaret Hart Edwards and Patrick Martin.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.