YourABA June 2011 Masthead

EEOC regulations set new bar for ADA compliance

The recently issued Equal Employment Opportunity Commission regulations for the Americans with Disabilities Act Amendments Act of 2008, which became effective May 24, seek to broaden the definition of disability and make it easier for people for people seeking protection to establish disability status. What the regulations will mean to employers was the subject of a recent ABA CLE teleconference that featured two EEOC commissioners.

Through its amendments act, Congress rejected the holdings in several Supreme Court decisions relating to a narrow definition of the term “disability.” Congressional focus centered not on whether an individual meets the definition of disability, said EEOC Commissioner Chai Feldblum. Indeed, the goal of Congress in passing the amendments was that the definition of disability “should not demand extensive analysis.” Rather, the issue is whether discrimination had occurred, Feldblum continued.

Through its amendments act, Congress rejected the holdings in several Supreme Court decisions relating to a narrow definition of the term “disability.”

There are three prongs that allow for coverage under the ADAAA: an individual must have a “physical or mental impairment that substantially limits one or more of the major life activities;” or have a record of such an impairment; or have been subjected to an action prohibited by the ADA as amended because of an actual or perceived impairment that is not both “transitory and minor.”

Among actions, Congress developed a series of nine rules for interpreting the term “substantially limits,” as well as broadened the interpretation of “major life activities.”

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Specifically, Congress added the operation of “major bodily functions” to the interpretation of major life activities. The “bodily functions” is an extensive list ranging from functions of the immune system to normal cell growth to endocrine and lymphatic functions. By including the operation of major bodily functions as a major life activity, Congress has made it easier for individuals with certain impairments to define themselves as disabled under the law.

In its regulations, the EEOC stated that there are a series of “predictable assessments” that are virtually always covered under the amendments act. The list includes but is not limited to: autism, cancer that substantially limits normal cell growth, diabetes substantially limiting endocrine function and epilepsy substantially limiting neurological function. Before the ADAAA, many individuals with such conditions were denied protection under the ADA.

Among the nine rules to be used to define “substantially limits” are:

  • Rule #6: The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures. Thus, according to an EEOC “Questions and Answers for Small Businesses: The Final Rule Implementing the ADA Amendments Act of 2008", “the determination of disability must focus on whether the individual would be substantially limited in performing a major life activity without the mitigating measure.”
  • Rule #7: An impairment that is episodic or in remission is a disability if it would substantially limit a major activity when active; and
  • Rule #9: An impairment that is temporary — e.g., one that will last or expect to last fewer than six months — can be substantially limiting.

An additional caveat that may signal change for businesses is the reasonable accommodation proviso. Specifically, “an employee with an impairment that previously limited, but no longer substantially limits, a major life activity may need leave or a schedule change to permit him or her to attend follow-up or ‘monitoring’ appointments with a health care provider.” Thus, businesses now may be further required to allow flexible work schedules for employees with a disability that is episodic or in remission.

EEOC Commissioners Explain Final ADAAA Regulations” was sponsored by the ABASection of Labor and Employment Law and Center for CLE. In addition to Feldblum, EEOC Commissioner Victoria A. Lipnic; Michael C. Subit, partner, Frank Freed Subit & Thomas LLP, Seattle; and L. Julius M. Turman, partner, Morgan, Lewis & Bockius LLP, San Francisco; served as panelists.

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