While the EEOC’s proposed standards for determining disability have significantly changed, the definition itself has been left untouched by the ADAAA. A disability is still defined as (i) an impairment that substantially limits one or more major life activities, (ii) having a record of such an impairment, or (iii) being regarded as having such an impairment. This article addresses the key changes as to how these terms are interpreted in the proposed regulations.
New Standard for Determining “Substantially Limits”
The EEOC has revised its standard for determining whether an impairment “substantially limits” a major life activity. This standard no longer requires a showing that the impairment is “significantly” or “severely” limiting as compared to the condition, manner, or duration under which the “average person in the general population” can perform the same major life activity. The proposed standard is whether the impairment is “substantial” as compared to “most people in the general population.”
While a significant or severe restriction is no longer required, the EEOC says that the impairment must be more than a “temporary, non-chronic impairment of short duration with little or no residual effects” (e.g., the common cold or flu). Thus the new standard places the meaning of “substantially limiting” below “severe” on the one side but above “temporary and minor” on the other.
Moreover, the EEOC has eliminated the term “condition, manner, or duration” of the limitation and changed the term “average person in the general population,” as the basis for comparison to “most people in the general population.” According to the EEOC, this change was made so that the comparison between the individual and the general population is based on a “common-sense approach that does not require an exacting or statistical analysis.”
Another noteworthy clarification is that the correcting effects of medications and other mitigating treatments may no longer be considered in determining whether an impairment substantially limits a major life activity. Going forward, the essential question is whether an individual would be substantially limited in an untreated state, even where a mitigating treatment causes the individual to have no (or only minor) limitations. For example, under the prior regulations and court decisions, a diabetic who takes insulin to correct blood sugar levels typically would not be considered disabled if he or she functions normally with the medication. Under the proposed regulations, the diabetic’s condition must be considered without the taking of insulin, which would inevitably lead to a determination of disability. The EEOC has carved out two exceptions to this new rule, which are that employers may consider the ameliorating effects of ordinary eyeglasses or contact lenses and a surgical intervention that permanently eliminates an impairment.
The EEOC provides a non-exhaustive list of conditions that it believes will consistently meet the definition of disability. This non-exhaustive list of ostensibly “automatic” disabilities includes deafness, blindness, intellectual disability (formerly termed mental retardation), missing limbs, mobility impairments requiring the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV or AIDS, multiple sclerosis and muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder and schizophrenia.
The EEOC also lists examples of conditions that may be disabling for some individuals but not for others, including asthma, high blood pressure, learning disability, back or leg impairment, carpal tunnel syndrome, hyperthyroidism, and certain psychiatric impairments such as panic disorder, anxiety disorder, and some forms of depression other than major depression.
Another important change under the new regulations is that an impairment that is episodic or in remission is considered a disability if it would substantially limit a major life activity when active. Under the prior regulations, an individual with cancer in remission who functions normally would not have been considered disabled. Under the new regulations, an individual with cancer is considered disabled, even if in remission. The EEOC lists many examples of episodic impairments, including epilepsy, depression, hypertension, asthma, bipolar disorder, and post-traumatic stress disorder.
New “Major Life Activities”
The ADAAA and the proposed regulations add “major bodily functions” to the definition of major life activities. Major life activities are defined as those basic activities, including major bodily functions, which most people in the general population can perform with little or no difficulty. The regulations provide two non-exhaustive lists of major life activities, one listing activities and the other listing bodily functions.
The first non-exhaustive list includes activities such as 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.
The second non-exhaustive list includes bodily functions , such as functions of the immune system, special sense organs, and skin; normal cell growth; digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions.
The proposed regulations clarify that an impairment does not need to substantially limit more than one major life activity. For example, an individual with AIDS whose immune system is substantially limited would not need to show substantial limitation with regard to any other major life activity.
What Impairments Do Not Qualify As Disabilities?
So what types of impairments do not qualify as disabilities? The proposed regulations offer limited guidance. As noted above, excluded are temporary, non-chronic conditions of short duration that result in little or no residual effects. But exactly how long is “temporary?” The regulations do not provide an answer. In fact, they explicitly state that an impairment may be substantially limiting even if it lasts or is expected to last fewer than six months. The proposed regulations do provide some examples of non-covered, temporary conditions, including broken limbs that heal normally, sprained joints, appendicitis, and seasonal or common influenza. The proposed regulations also state that episodic conditions imposing only minor limitations are not disabilities, such as seasonal allergies that do not substantially limit a person’s major life activities even when active.
“Regarded As” Having a Disability
The ADAAA and proposed regulations also expand the standard for determining whether an individual is “regarded as” having a disability. An individual must now only show that the employer took a negative action because the employer regarded the employee as having an impairment. A showing that the employer believed the impairment to be substantially limiting is no longer required. The perceived impairment, however, must be more than transitory (having an actual or expected duration of six months or less) and minor. For example, an individual who is placed on involuntary leave because of a broken leg that is expected to heal normally is not regarded as disabled because the broken leg is transitory and minor. However, an employee who is fired from a food service job because the employer believes the employee has Hepatitis C is regarded as disabled (whether or not the employer believes the Hepatitis C is substantially limiting) because Hepatitis C is not transitory and minor.
The proposed regulations further explain that an employer may regard an individual as disabled if it takes a negative action based on a symptom of an impairment. For example, an individual is “regarded as” disabled where the employer terminates him or her because of a transitory and minor hand wound, believing the wound to have been caused by HIV infection.
The proposed regulations also clarify that an employer is not required to reasonably accommodate an individual “regarded as” having a disability.
Qualification Standards and Tests Related to Uncorrected Vision
The proposed regulations prohibit employers from using qualification standards, employment tests, or other selection criteria based on an individual’s uncorrected vision. Thus if an eyesight test is performed, an individual must be allowed to wear glasses or contact lenses. The only exception is if a qualification relating to uncorrected vision is job-related and consistent with business necessity.
Conclusion
Even though the proposed regulations are open for public comment until Nov. 23, 2009, and therefore subject to change, the ADAAA went into effect on Jan. 1, 2009. Therefore, employers should be prepared to comply with the Act’s requirements now. The ADAAA has ushered in a new era in which more individuals will be deemed disabled under its more lenient standards. As a result, more employees will have a right to reasonable accommodation and employers will likely see a rise in disability discrimination claims. Employers should therefore carefully examine and revise their employment policies and procedures, such as those for anti-discrimination and harassment, reasonable accommodation, hiring, evaluations, medical leave, and termination of employment. Employers should also ensure that supervisors are well-trained with regard to these policy changes and how to handle potential disability claims and requests for accommodation appropriately. It will be crucial for supervisors to understand the much more lenient standards for determining whether a disability exists so that they do not unwittingly fail to engage in the required interactive process with a disabled applicant or employee regarding reasonable accommodation. |