Perhaps the largest impact of the new law will be that the issue of whether an individual has a “disability” is likely an analysis of the past. The Final Regs 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.
My clients are inquiring about other aspects of the ADAAA and the New Regs as well. Here are some of the more common inquiries:
Q: We have a small company. Are we required to comply with the ADAAA?
A: Like the ADA, the ADAAA and the Final Regs 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. So, for example, under the Washington Law Against Discrimination, the employer need only employ 8 individuals and, if the situation involves a termination related to a disability, state common law basically removes the WLAD from the analysis.
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 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.” Thia is a huge shift in how employers should approach disability accommodations.
Q: How is “disability” defined under the Final Regulations?
A: The ADAAA and the Final Regs 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 Regs 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 EEOC’s Final Regs 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 Regs 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 Regs set forth “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’s 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.
With these changes in mind, employers should shift their focus to the following main considerations:
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 in employment (e.g., terminations and demotions).
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