9/23/2009 EEOC Issues Proposed ADA Regulations What Employers Should Know
Introduction
The Equal Employment Opportunity Commission (“EEOC”) recently released proposed guidelines regarding the Americans with Disabilities Act (“ADA”), in light of the ADA Amendments Act of 2008 (“ADAAA”) that went into effect on January 1, 2009. The proposed regulations seek to better define and interpret the definition of “disability,” including lowering the threshold to establish a “disability” under the law, expansion of the enumerated list of major life activities, elimination of the consideration of mitigating measures in assessing whether a “disability” exists, inclusion of episodic impairments as a “disability,” and lowering the standard for an employee to show that he or she was “regarded as” having a disability. Given the new proposed regulations, employers should be prepared to review, and when the proposed regulations become final, revise their ADA policies to reflect the new changes.
Congress Enacts the ADAAA Amending the ADA
The enactment of the ADAAA was partially in response to years of U.S. Supreme Court decisions that narrowed the scope of the ADA’s definition of “disability.” The ADAAA takes an expansive approach to the definition of “disability” that does not demand extensive analysis, as happened in the past. The ADAAA called for the EEOC to draft new regulations outlining a looser standard for determining whether an individual is disabled under the ADA.
The ADAAA made several changes to the ADA, including:
1. ADAAA Definition of “Disability” Expanded. While the ADAAA maintains the ADA’s original definition of “disability” as (a) an impairment that substantially limits one or more major life activity; (b) a record of such impairment; or (c) being regarded as having such impairment, the ADAAA makes clear that the terms should be broadly construed to cover individuals to the maximum extent possible. The ADAAA clarifies that an episodic condition that would substantially impair a major life activity while active is a “disability” under the ADAAA. The ADAAA calls for the EEOC to revise existing regulations interpreting the definition of “disability” accordingly.
2. Lower Standard for Employees Proving They Were “Regarded As” Disabled. Previously under the ADA, employees had to prove that the employer mistakenly believed the employee had a condition that substantially limited a major life activity. Under the ADAAA, an employee must only show that the employee was treated differently because the employer believed that the employee had a physical or mental condition regardless of whether this condition actually or seemingly limits a major life activity.
3. Consideration of Mitigating Measures Greatly Reduced. Formerly, pursuant to case law interpreting the ADA, employers were able to consider mitigating measures being used by the employee (such as medications) in determining whether or not the employee was disabled. Under the ADAAA, the employer is prohibited from considering mitigating measures, except for eyeglasses or contact lenses.
The EEOC Issued Proposed Changes to the ADA Regulations
On September 23, 2009, the EEOC issued proposed changes to the regulations dealing with the ADA. The EEOC has opened up a 60-day period during which time the EEOC will accept comments from the public regarding the proposed guidelines. At the end of this comment period, the EEOC will issue a final rule and fix an effective date for the regulations.
The ADAAA alters the way in which the term “disability” should be interpreted, and as a result, the EEOC has proposed amending the current regulations to comply with the ADAAA in the following areas:
1. “Disability” Broadly Defined. The proposed rule makes it clear that the definition of “disability” shall be interpreted broadly.
2. “Substantially Limited” Interpretation Revised. The proposed rule changes the regulations defining the term “substantially” limits and clarifies that a limitation does not need to “significantly” or “severely” limit a major life activity in order to meet the standard. The EEOC also deleted language referring to the condition, manner, or duration under which a major life activity is performed to make clear that the threshold has been lowered in defining a “disability.”
3. Major Life Activities Expanded. The proposed rule increases the scope of a major life activity under the ADA, and the rule provides two new lists of major life activities:
a. Activities: 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.
b. Major Bodily Functions: functions of the immune system, special sense organs, skin, normal cell growth, digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions.
4. Mitigating Measures May Not Be Considered. The proposed rules reflect the ADAAA’s requirement that mitigating measures not be considered in determining whether an individual has a “disability,” except for eyeglasses and contact lenses.
5. Episodic Condition May Be a Disability. The proposed rules echo the ADAAA’s expanded definition of “disability” by providing that a condition that is episodic or in remission may be considered a “disability” if the condition would substantially limit a major life activity when active.
6. Definition of “Regarded As” Changed. The proposed rules change the definition of “regarded as” so that the employee no longer needs to show that the employer believed that the employee was substantially limited in a major life activity. Instead, the new definition under the proposed rules provide that an employee satisfies the definition of “regarded as” when the employee shows that the employer took an action prohibited by the ADA because the employer believed the employee had an actual or perceived condition, unless the impairment is both transitory and minor.
7. No Reasonable Accommodation for Employees Covered Under “Regarded As” Prong. The proposed regulations make clear that an employee who is covered under the “regarded as” prong is not entitled to reasonable accommodation under the ADA.
Steps for Employers to Comply With the ADA and ADAAA
While both the ADAAA and proposed regulations issued by the EEOC are expected to provide some clarity to employers, employees and the courts, the ADAAA and the proposed regulations will present a challenge to employers trying to maintain compliance. The ADAAA and the proposed regulations expand the definition of “disability” that employers have been using since the 1990’s. An expanded definition of “disability” means that more employees will be covered by the ADA, and more employees may be entitled to reasonable accommodation.
In order to respond to the expansion of employee protections under the ADA, employers should seek training for human resources staff and others in charge of creating and implementing reasonable accommodations. In addition, employers should also review their ADA policies to make sure they are compliant.
If you would like assistance updating your ADA policy, reasonable accommodation criteria, or any other aspect of your employee medical leave procedures, contact any attorney of Trepanier & MacGillis P.A. at 612-455-0500.
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