EEOC'S final regulations implementing the Americans with Disabilities Act Amendments Act

The EEOC's final regulations interpreting the Americans with Disabilities Act Amendments Act (ADAAA) became effective on May 24, 2011.  As reported in a prior Iowa Employer Law Blog post, the EEOC has also posted Questions and Answers and a Fact Sheet on its website to help employers (and employees) understand the final regulations. The EEOC had issued a notice of proposed rulemaking in September 2009, soliciting comments. After considering more than 600 comments, the EEOC's final rules vary slightly from its proposed regulations. The regulations make clear that the primary purpose of the ADAAA is to make it easier for employees to establish a disability under the ADA. Three-pronged Definition of 'Disability.' The ADAAA and final regulations define 'disability' as:

• a physical or mental impairment that substantially limits one or more major life activities ('actual disability'),

• a record of a physical or mental impairment that substantially limited a major life activity ('record of'), or

• a circumstance in which an employer takes an action prohibited by the ADA because of an employee's actual or perceived impairment that is not both transitory and minor ('regarded as').  Employers must prove as an affirmative defense that the impairment is both transitory and minor.

Employers are not required to provide a reasonable accommodation for a 'regarded as' disability. Thus, an employee must bring a claim under the 'actual' or 'record of' prongs if claiming the employer failed to provide a reasonable accommodation. While an employee can bring an adverse action claim under any of the three prongs, the EEOC opines that adverse action claims (such as failure to hire or promote, termination, and harassment) should be brought under the 'regarded as' prong because of its ease of coverage. List of Disabilities.   The proposed regulations included a list of impairments that will 'consistently meet' the definition of a disability.  The final regulations changed the wording slightly to say the same impairments that were identified in the proposed regulations will 'as a factual matter, virtually always be found to impose a substantial limitation on a major life activity.'  Thus, the 'necessary individualized assessment' of whether an individual with one of these impairments has a covered disability should be 'particularly simple and straightforward.' The final regulations list the exact same impairments that appeared in the proposed regulation, including: deafness, blindness, intellectual disability, 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. Work as a Major Life Activity.  The proposed regulations contained a lengthy discussion of the major life activity of 'working.'  The final regulations removed that section, instead discussing the topic briefly in the Appendix. The EEOC instructs, 'with all of the changes made by the ADAAA, in particular the inclusion of major bodily functions as major life activities and revisions to the ‘regarded as' prong of the definition of ‘disability,' it should generally be unnecessary to determine whether someone is substantially limited in working.' Major Bodily Functions.  The regulations make clear that the term 'major life activities' includes 'major bodily functions,' such as functions of the immune system, normal cell growth, and brain, neurological, and endocrine functions. Episodic Conditions.  Impairments that are episodic or in remission will meet the definition of a disability if they are substantially limiting when they are active.  The individual does not have to be substantially limited in any major life activity at all times. Examples of episodic impairments included in the Appendix to the regulations include epilepsy, hypertension, asthma, diabetes, major depressive disorder, bipolar disorder, and schizophrenia. Mitigating Measures.  The ADAAA and the final regulations indicate that except for ordinary eye glasses or contact lenses the positive (ameliorative) effects from the use of one or more mitigating measures must be ignored in determining whether an impairment substantially limits a major life activity.  In contrast, the negative effects of mitigating measures such as the side effects from chemotherapy may be considered in determining whether an individual is substantially limited in any major life activity. Each of these new provisions in the regulations should cause Iowa employers to rethink their approach to employees seeking reasonable accommodations in the workplace. Most human resource professionals, employment lawyers, and judges used to carefully scrutinize whether an employee's impairment fit through the eye of the ADA disability needle that required an employee to have an impairment that substantially limits a major life activity but to still be able to perform the essential functions of the job, with or without a reasonable accommodation. Congress and the EEOC now make clear that the first part of the inquiry should not be extensive.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.