On March 25, 2011, the Equal Employment Opportunity Commission ("EEOC") published the final regulations ("Regulations") (29 C.F.R. Part 1630) and accompanying interpretive guidance implementing the ADA Amendments Act of 2008 ("ADAAA"). The Regulations become effective on May 24, 2011.
The ADAAA was intended to broaden the definition of disability under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA"), and make it easier for individuals with disabilities to obtain protection under the ADA. The Regulations implement this Congressional goal, explicitly affirming that the definition of "disability" must be "construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADA."
Consistent with this objective, the Regulations clarify and expand many of the terms and procedures used to determine whether an individual is disabled:
- A "physical or mental impairment" is (1) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or (2) any mental or psychological disorder, such as an intellectual disability (formally termed "mental retardation"), organic brain syndrome, emotional or mental illness and specific learning disabilities.
- The term "major life activities" includes, but is not limited to, 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, as well as the operation of a major bodily function, including functions of the immune system, special sense organs and skin, normal cell growth, and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardio vascular, endocrine, hemic, lymphatic, musculoskeletal and reproductive functions.
- In determining whether an impairment "substantially limits" a major life activity, the Regulations provide certain "Rules of Construction":
- 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; it does not need to prevent or significantly restrict the individual from performing the major life activity.
- The determination of whether an impairment substantially limits a major life activity requires an individualized assessment that does not necessarily need to include scientific, medical or statistical data.
- The determination of whether an impairment substantially limits a major life activity must be made without regard to the ameliorative effects of mitigating measures (other than ordinary eyeglasses or contact lenses on vision impairments).
- An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
- An impairment only needs to substantially limit one major activity.
- A severe impairment that lasts less than three months could be a "disability".
The Regulations will materially change how employers handle employees who claim they are disabled and want to receive an accommodation. Therefore, we recommend that employers take the following steps:
- Reassess all ADA procedures and policies to ensure that they recognize the broadened scope of the term "disability" and provide for a meaningful interactive process with the disabled employee as soon as possible. The ADAAA and the Regulations want employers to focus on the interactive process rather than whether an individual is "disabled".
- Review all company job descriptions to confirm that they specifically and accurately define the essential functions of each position.
- Analyze pre- and post-employment screening and testing to ensure they are job-related and do not adversely affect the broad range of qualified, disabled individuals who will now take part in the screening or testing.
Additionally, employers also should ensure that their practices are compliant with the Genetic Information Nondiscrimination Law ("GINA"), which interplays with the new ADAAA regulations. For example, when requesting medical information for accommodation purposes, employers should ensure that the request includes the safe harbor language set forth in the GINA regulations, which became effective earlier this year. For more information regarding GINA, please review our earlier advisory.