Jackson Lewis

The Equal Employment Opportunity Commission has released long-awaited Final Regulations implementing the ADA Amendments Act (ADAAA).  The ADAAA was signed into law on September 25, 2008, and became effective on January 1, 2009.  The Final Regulations will become effective on May 24, 2011, 60 days from March 25, 2011, the date they were published in the Federal Register.

Rules of Construction

The Final Regulations reaffirm the purpose of the ADAAA:  to make it easier for individuals with disabilities to obtain the ADA’s protection.  The ADAAA made clear that the primary focus in ADA cases should be on whether employers complied with their obligations under the statute and whether discrimination occurred, not whether individuals are disabled under the law.  Accordingly, the Final Regulations follow Congress’ lead by providing “rules of construction” to evaluate ADA-coverage issues.  These “rules of construction” are as follows:

• The term “substantially limits” is to be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA.  
• Whether an impairment “substantially limits” a major life activity should not demand extensive analysis.
• An impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population; this usually will not require scientific, medical, or statistical analysis.
• An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. Nonetheless, not every impairment will constitute a disability.
• “Substantially limits” is to be interpreted and applied to require a degree of functional limitation that is lower than the standard for “substantially limits” applied prior to the ADAAA.
• Except in the cases of ordinary eyeglasses or contact lenses, the determination of whether an impairment substantially limits a major life activity is to be made without regard to the ameliorative (beneficial) effects of mitigating measures. 
• An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
• An impairment that substantially limits one major life activity need not substantially limit other major life activities in order to be considered a substantially limiting impairment.
• The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting.

Predictable Assessments

While careful to state that an individualized assessment is always required, the Final Regulations allow that some impairments involve “predictable assessments” which, in “virtually all cases,” will result in a finding that they are covered by the ADA. The Final Regulations seek to provide a “predictable, consistent, and workable” framework for ensuring more generous coverage and application of the ADA’s discrimination prohibition. Impairments that should lead to “predictable assessments” include deafness, blindness, intellectual disabilities, partially or completely missing limbs or mobility impairments requiring the 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.

 “Regarded As” Coverage

The most far-reaching provisions of the Final Regulations arguably can be found in the provision on coverage when one is “regarded as” having a substantially limiting impairment.  The Final Regulations clarify that an individual is “regarded as having such an impairment” if the individual is subjected to a prohibited action because of an actual or perceived physical or mental impairment, whether or not that impairment substantially limits, or is perceived to substantially limit, a major life activity.

Prohibited actions include refusal to hire, demotion, placement on involuntary leave, termination, exclusion for failure to meet a qualification standard, harassment, and denial of any other term, condition, or privilege of employment, among others. 

In practice, an individual is “regarded as having such an impairment”  if his or her employer takes a prohibited action against the individual because of an actual or perceived impairment, even if the employer asserts, and may ultimately establish, a defense to such action. This highlights the ease with which individuals can now obtain ADA coverage.  However, coverage alone does not mean the employer has violated the ADA.  Liability is established only when an individual proves that an employer discriminated on the basis of disability, which, in turn, requires an analysis of whether the individual was qualified for  the position sought or held.

Practical Implications

From a day-to-day management perspective, many more individuals will be entitled to reasonable accommodations.  Employers should expect that ADA cases will proceed to a point where they must defend decisions by showing individuals were not “qualified” because they could not safely or successfully perform essential job functions, with or without reasonable accommodations, or that the employers offered or attempted unsuccessfully to offer reasonable accommodations.  Every adverse employment decision that is based on an individual’s inability to perform due to an injury or illness has the potential to lead to a contested ADA case.  While the Final Regulations do not become effective for 60 days, the ADAAA has been in effect since January 1, 2009, and employers, as a practical matter, should begin complying with the Final Regulations immediately.

Attorney Frank Alvarez, coordinator of Jackson Lewis’ Disability, Leave and Health Management practice, said, “Employers need to come to grips with the enormous reach of this ‘new’ ADA.  While they need not waive any ADA defenses, in responding to a request for a reasonable accommodation, enforcing conduct or performance standards, or defending a charge or lawsuit, employers ought to presume injured or ill employees will be covered under the ADA.”  Attorney Michael Soltis added, “Proving that one is ‘regarded as’ disabled will be easily accomplished in most cases.  Cases now will turn on ‘process’ — whether employers took the right steps to assess individually an employee’s or applicant’s ability to perform essential job functions, and whether reasonable accommodations could overcome any job-related limitations.  In the last two years, ADA charges have increased by 30% — and that may just be the beginning.” 

An employer’s best defense is to review reasonable accommodation policies and procedures and to train legal, human resources and front-line management personnel about the wide range of conditions and circumstances triggering ADA rights and responsibilities.

Stay Tuned for More Guidance

In the weeks ahead, Jackson Lewis attorneys will continue to break down the new ADA Final Regulations and provide additional analysis and recommendations for ADA compliance.