The EEOC's ADAAA Regulations Generally Track the Statute

Posted on May 18, 2011 by Joseph Dole

More than two years ago, the ADA Amendments Act (the “ADAAA”) of 2008 went into effect. The statute was designed to broaden the coverage of the Americans with Disabilities Act. Earlier this year, the EEOC issued long-awaited and much-debated final regulations to implement the ADAAA. In conjunction with the release of the regulations, the EEOC also released an appendix to the regulations containing examples, a fact sheet on the regulations, a question and answer document and a small business question and answer document.   The regulations are effective on on May 24, 2011.

The final regulations eliminate or change many of the more controversial proposed regulations to which employer representatives objected during the notice and comment period. One item which continues to cause controversy, however, is EEOC’s list of so-called “per se disabilities,” impairments that have been characterized as automatically qualifying as covered disabilities. EEOC has created this list through a series of rules of construction used to analyze whether a particular impairment is a disability. The regulations explain that in using these rules of construction, some impairments, such as epilepsy, diabetes, cancer and bipolar disorder, to name a few, will virtually always constitute disabilities. However, the regulations do provide that an individualized assessment is still required in every case.
 

Most of the new regulations, however, simply implement the ADAAA’s requirements. For example, the regulations provide certain rules of construction used to determine whether an individual is substantially limited in performing a major life activity, and therefore disabled under the Act. Those rules of construction range from the very general (the term substantially limits should be construed broadly in favor of expansive coverage and requires a lower degree of functional limitation than previously required by the courts), to the more specific (an impairment in remission is a disability if it would substantially limit a major life activity when active).

Questions about whether and how a particular major life activity might be substantially limited, including the major life activity of working, are addressed not in the regulations themselves, but in an appendix to the regulations. The EEOC notes that given the significant changes in the definition of disability made by the ADAAA, it will rarely be necessary to determine whether an individual is substantially limited in the major life activity of working.

Consistent with the ADAAA, the new regulations expand coverage under the “regarded as” prong of the statute, focusing on the employer’s treatment of the individual, rather than whether the employer believed the individual had a substantially limiting disability. The question becomes whether the employer took a prohibited action because of an actual or perceived impairment that is neither transitory nor minor. As a result of this redefinition of the “regarded as” prong, the new regulations note that proceeding under this prong will be sufficient for most complainants, the most significant exception being cases where the employee claims he or she was denied a reasonable accommodation. In those cases, the employee will have to proceed under the actual disability or record of disability prongs.
 
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Court Interprets ADAAA To Permit Disability Discrimination Claim Based on Cancer in Remission

Posted on September 28, 2010 by Margo Ferrandino

“In one of the first cases of its kind to make it to the summary judgment phase,” a federal district court in Indiana found last month that under the recent amendments to the Americans with Disabilities Act (“ADAAA”), cancer even while in remission is a disability, Hoffman v. Carefirst of Fort Wayne Inc. The case is significant because it is one of the first cases to interpret broadly the ADAAA’s expanded definition of disability and to rely on Equal Employment Opportunity Commission (“EEOC”) guidance in doing so. It is also significant because it imposes a reasonable accommodation obligation for an impairment that did not substantially limit a major life activity at the time the accommodation was requested.

According to the Court’s opinion, the plaintiff, Stephen Hoffman was employed as a mobile service technician. In November 2007, Hoffman was diagnosed with stage III renal cancer. In January 2008, two months after undergoing surgery to remove a kidney, Hoffman returned to work. Although Hoffman sometimes suffered from fatigue, pain, and discomfort, particularly when sitting or driving, Hoffman continued working his routine schedule without any medical restrictions.

One year later, in January 2009, Advanced Healthcare informed Hoffman that due to a new contract it had acquired, he would have to work significant overtime, travel to a different location for a night shift once a week, and be on call on weekends. Hoffman objected, claiming that the additional hours would put him “in the grave” because of his recent bout with cancer, and provided a note from his doctor stating that Hoffman could not work more than eight hours per day and no more than five days per week. Ultimately, Advanced Healthcare would not agree to provide Hoffman with the accommodation he requested. Hoffman subsequently filed a disability discrimination suit alleging that Advanced Healthcare unlawfully terminated his employment and failed to offer him a reasonable accommodation.

In its motion for summary judgment, Advanced Healthcare argued that Hoffman was not disabled because he did not have a disability which substantially limited a major life activity at the time of the relevant events. The Court disagreed, holding that it was “bound by the clear language of the ADAAA. Because it clearly provides that an ‘impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active . . ..’” With respect to the question of whether Hoffman’s cancer would have substantially limited a major life activity when it was active, the Court looked to the EEOC’s guidance, which lists cancer as a condition which substantially limits a major life activity. The Court logically concluded that “under the ADAAA, because Hoffman had cancer in remission (and that cancer would have substantially limited a major life activity when it was active), Hoffman did not need to show that he was substantially limited in a major life activity at the time of the alleged adverse employment action. As a result, his employer had an obligation to engage in the interactive process to provide him with a reasonable accommodation. The reasonable accommodation holding is, of course, simply the logical outgrowth of the Court’s determination that Hoffman had a covered disability under the ADAAA. Once that exists, the reasonable accommodation obligation follows.
 
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Comment Period Closes on EEOC's ADAAA Proposed Regulations

Posted on December 11, 2009 by Andrew Bobrek

As we reported earlier this year, the Equal Employment Opportunity Commission (“EEOC”) has proposed regulations implementing the Americans with Disabilities Act Amendments Act (“ADAAA”). The EEOC published its proposed regulations in September, and the period for public comment recently closed on November 23, 2009. The EEOC will now evaluate the comments it has received and then issue final regulations, which may or may not include changes to the proposed rules.

Consistent with the intent of the ADAAA, the EEOC’s proposed regulations would broaden the definition of what constitutes a protected “disability” under federal law. The EEOC believes that this will have the effect of shifting the focus of litigation away from whether a person’s impairment is a covered “disability,” and to the issue of whether an employer has complied with its obligations under the law.

While many aspects of the proposed regulations appear to reasonably interpret the ADAAA, commentators have noted there are some provisions which, at least arguably, constitute overreaching on the EEOC’s part. Among the most controversial of these provisions are the following:

 

New List of “Per Se” Disabilities

Perhaps the most controversial element of the proposed regulations is the EEOC’s creation of what some commentators have called a “per se” list of protected disabilities. The ADAAA itself neither contains such a list, nor expressly authorizes the EEOC to create one. The EEOC claims its non-exclusive list does not preclude employers from undertaking an “individualized assessment” to evaluate a potential disability. At the same time, according to the agency, the list is intended to ensure this assessment “can be done very quickly and easily with respect to these types of impairments, and will consistently result in a finding of disability.”

Elimination of “Condition, Manner, or Duration” Analysis

The proposed regulations would redefine the term “substantially limits,” by eliminating the previous “condition, manner or duration” evaluation used by employers to determine whether an impairment substantially limits a major life activity. Instead, the regulations state this evaluation should be made on the basis of “common-sense” and “without resorting to scientific or medical evidence” by comparing an individual’s limitation to “the ability of most people in the general population.” (The ADAAA does not expressly address this issue, and the statute’s legislative history suggests that the drafters intended to preserve the “condition, manner, or duration” analytical device.)

“Major Life Activity” of “Working”

The proposed regulations would also alter the framework employers are required to use to analyze whether an impairment substantially limits the major activity of working. (The ADAAA is silent on this issue as well.) Specifically, under the proposed regulations, “an impairment substantially limits the major life activity of working if it substantially limits an individual’s ability to perform, or meet the qualifications for, the type of work at issue.” This new framework would replace current law which requires an inability to perform a “broad range” or “class” of jobs.

Less controversial, but nonetheless noteworthy, are the following provisions:

Expansion of “Major Life Activities” and “Major Bodily Functions” Lists

The proposed regulations would expand the list of “major life activities” found in the ADAAA, to include: sitting, reaching and interacting with others. Similarly, the proposed regulations would expand the ADAAA’s list of “Major Bodily Functions” to include: hemic, lymphatic, musculoskeletal, special sense organs and skin, genitourinary and cardiovascular.

Expansion of “Mitigating Measures” List

The proposed regulations supplement the ADAAA’s list of mitigating measures, which may not be considered in determining whether an individual has an impairment which substantially limits a major life activity, to include surgical interventions that do not permanently eliminate an impairment. However, EEOC takes the position that mitigating measures may be taken into consideration for other purposes, for example, to determine whether a reasonable accommodation is required or to determine whether an individual poses a “direct threat” in the workplace.

Although it is not known when the EEOC will issue its final regulations, Commissioner Constance Barker has stated it could be as early as March 2010. We will continue to monitor and report on any noteworthy developments.
 
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