New ADA Regulations Just Issued
EEOC Rules Mean Virtually Everyone Is Disabled

Earlier today, the Equal Employment Opportunity Commission’s long-awaited regulations under the ADA Amendments Act (“ADAAA”) issued in final form, for publication in tomorrow’s Federal Register. The regulations will become effective sixty days thereafter, on May 24, 2011. Much of the new regulations and accompanying guidance is unsurprising and comports with the language of the ADAAA. For example:

the statute is to be construed broadly;
employers should focus on accommodations, as opposed to questioning whether someone is disabled; and
mitigating measures including medicine, other treatments, and prosthetic devices must be set aside in analyzing whether an individual is “disabled.”

What is surprising, and doubtless game-changing, is the agency’s decision to list conditions that, according to the EEOC, will “virtually always” be covered impairments. The EEOC says those impairments are not per se disabilities, as it must if the new regulations are to resemble the original statute. Yet, by characterizing listed conditions as “virtually always” covered, the agency has in effect labeled tens of millions of Americans disabled.

The EEOC did not stop there. Rejecting the views of business organizations and employment attorneys, the EEOC has made clear that any impairment – no matter how brief in duration – can be a covered disability. By those changes and others, the EEOC’s new regulations will further burden employers, not only with compliance challenges but also litigation that will inevitably follow the EEOC’s expansive approach.

Background

The ADAAA was enacted on September 25, 2008, effective January 1, 2009. The amended ADA still provides that an impairment is a disability only if it “substantially limits” an individual’s ability to perform a major life activity. In amending the ADA, however, Congress specifically rejected several Supreme Court decisions that had narrowly construed the term “disability” by, among other ways, holding that mitigating measures were to be considered in assessing whether an impairment was “substantially limiting.” Even before those decisions, federal courts had consistently accepted employer arguments that the plaintiff was not “substantially limited” as to a major life activity, and thus not protected by the statute. Employer motions for summary judgment were routinely granted on the ground that the plaintiff was not disabled, thereby mooting questions of whether “reasonable accommodation” would have enabled the plaintiff to perform all “essential job functions” – concepts at the heart of the original ADA, but which oftentimes became academic in ADA litigation. Armed with statistics about employer successes and after heavy lobbying by disability rights advocates, Congress responded by enacting the ADAAA.

Many of the EEOC’s New Regulations Track The Amended ADA

On September 23, 2009, the EEOC published proposed regulations under the ADAAA. Now those regulations are final. Many of the EEOC’s new rules track the ADAAA’s statutory mandates and express purposes. Like the ADAAA, the new regulations provide that “[t]he definition of disability ... shall be construed broadly, to the maximum extent permitted by the terms of the ADA.” New sections 1630.1(c)(4) and 1630.2(j)(1)(iii) describe the ADAAA as shifting the focus of an ADA case to the question of “whether discrimination occurred, not on whether” an individual meets the definition of disability. Prior to the ADAAA, the term “substantially limits” previously had been interpreted as “significantly restricts,” which resulted in many ADA claims being dismissed for failure to show a qualifying disability. Consistent with ADAAA, new section 1630.2(j)(1)(iii) states that the question of whether an individual is “substantially limited” in a major life activity “should not demand extensive analysis,” and section 1630.2(j)(1)(v) provides that comparing an individual’s performance of a major life activity to the performance of the same major life activity by most people in the general population “usually will not require scientific, medical or statistical analysis.” Additionally, new section 1630.2(i)(2) provides that whether an activity is a “major life activity” is not determined by reference to whether it is of “central importance to daily life.”
Further consistent with ADAAA, the new regulations add several new activities to the non-exhaustive list of major life activities covered by the ADA, including “sleeping, ... concentrating, thinking, [and] communicating.” The regulations likewise expand the concept of “major life activities” to include “the operation of major bodily functions” such as the “immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” The new regulations go further, however, in adding three more major life activities – sitting, reaching and interacting with others – plus the “major bodily functions” of the special sense organs, skin, genitourinary, cardiovascular, hemic, lymphatic and musculoskeletal systems as “further illustrative examples.”

A New And Expansive Approach To “Substantially Limits”

The ADAAA extended coverage to individuals with episodic impairments or conditions in remission, if the impairment would substantially limit a major life activity in its active state. New section 1630.2(j)(1)(vii) addresses episodic impairments, while new rule 1630.2(j)(3)(iii) provides a non-exhaustive list of examples, including epilepsy, multiple sclerosis, cancer, and psychiatric disabilities such as major depressive disorder, bipolar disorder, and post-traumatic stress disorder. In the Appendix “Interpretive Guidance,” other examples of episodic impairments are provided, such as hypertension and asthma, with remarks that “[t]he fact that the periods during which an episodic impairment is active and substantially limits a major life activity may be brief or occur infrequently is no longer relevant to determining whether the impairment substantially limits a major life activity.”

The EEOC Lists Conditions That Amount To Per Se Disabilities

The real shocker, however, is section 1630.2(j)(3)(i) through (iii). There, the EEOC lists various conditions that “in virtually all cases” meet the definition of disability based on certain characteristics associated with these impairments. The list includes 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. Commenters to the proposed rules objected vehemently that this contravenes the original ADA’s rejection of any per se disability. The EEOC’s new regulations pay lip service to the original statute’s individualized approach by saying that remains the law. But by providing a list of conditions that are now substantially limiting by regulatory definition, the EEOC has in effect upended the prior case-by-case approach.

Temporary Impairments Are Protected

The other bombshell is the EEOC’s flat-out rejection of the argument that temporary impairments are not substantially limiting, and thus not disabling. New section 1630.2(j)(1)(ix) rejects any durational minimum and explicitly provide that “[t]he effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of this section.” This arguably contravenes Congress’s intent in amending the statute because, among other reasons, Congress said nothing about short-term impairments being substantially limiting. This particular regulation seems ripe for challenge in the federal courts, especially as applied to persons whose impairments undisputedly lasted only a few months. It remains to be seen whether courts will afford deference to a regulation rooted more in the agency’s aggressive enforcement mentality than in legislative intent.

“Regarded As” Analysis Broader Still

The ADAAA expressly expanded “regarded as disabled” analysis by prohibiting discrimination based on the employer’s alleged perception of a mental or physical impairment, even if that impairment is not a perceived as an actual disability. Under new regulation 1630.2(l), proof that an individual was denied employment because of an impairment suffices to establish coverage under the ADA, “whether or not that impairment substantially limits, or is perceived to substantially limit, a major life activity.”

This means, for example, that a minor lifting restriction which might not rise to the level of an actual disability (under the major life activity of working or otherwise) could nonetheless be the basis of a “regarded as” claim. In a cryptic passage, the new regulations take this a step further by stating that an employer “regards” someone as disabled by taking action based on any real or perceived impairment, “even if the entity asserts, or may or does ultimately establish, a defense to such action.”

Some Solace For Employers

Like ADAAA itself, the new regulations confirm there is no duty to provide reasonable accommodations to those “regarded as” having a disability. However, the rules go beyond the statute in requiring that employers reasonably accommodate those with a “record of” disability absent undue hardship. (It is unclear how or why an employer should accommodate an individual with a record of disability if that individual is not actually, presently disabled.)

In one other pro-business passage, the EEOC chose not to posit that employers could be liable under “regarded as” analysis merely by virtue of knowing an individual takes medication or has symptoms that might be indicative of disability. The proposed rules sought comments on this approach. Disability rights advocates among others were in favor; employer organizations were opposed. (Congress said nothing about the issue in ADAAA.) Fortunately for employers, the EEOC pulled back from the position it had floated in the proposed rules.

Impact Of New Regulations On Employers

Taking the EEOC’s regulations as law, defendants are far less likely to prevail in court (much less before the EEOC) by arguing that an individual is not disabled and therefore is not covered under the ADA and/or does not require accommodation. By listing conditions that are “virtually always” disabling, including temporary impairments as covered conditions, and stretching “regarded as” analysis to cover just about anyone who has been sick and has had a workplace gripe about something tangible, the EEOC’s view of ADAAA arguably could be construed to protect virtually all Americans as disabled.
Now more than ever, employers must focus on reasonable accommodation, and on whether an individual with a physical or mental condition is otherwise qualified to perform essential job functions, with or without reasonable accommodation. This means employers must reassess their job descriptions, job qualification standards, and reasonable accommodation process (including leave of absence procedures) to ensure that they are current and defensible.
The same goes for testing procedures. That includes physical ability tests, which may adversely impact persons with disabilities, or at the very least require accommodation upon request. Likewise, pencil and paper tests should be reevaluated in light of ADAAA, no matter what skills they purport to measure. Some such tests are rooted in personality tests, even the most sophisticated of which may run afoul of ADA’s medical inquiry and examination proscriptions. The courts of appeals are divided over whether those provisions apply to the non-disabled. Now, however, with virtually everyone covered by federal disability law, those prohibited examination and inquiry provisions functionally protect all individuals, no matter the circuit wherein they live or work.
Lawyers defending ADA cases in court must, in most cases, wean themselves off arguing that the plaintiff is not disabled. Making that argument will remain a powerful urge, particularly (although not exclusively) when the employer believes the individual is exaggerating the effects of his or her impairment. Granted, some plaintiffs will still be unable to establish threshold protection under the ADAAA. Under old ADA that was commonplace; going forward, it will be the exception. Accordingly, to prevail in court on summary judgment or at trial, the employer must typically focus its arguments on accommodation – it made accommodation, the plaintiff failed to request accommodation, the plaintiff declined accommodation, the plaintiff failed to participate meaningfully in the accommodation process, etc. And, of course, the employer must be prepared to prove those arguments, rather than relying on the claim being dismissed for failure to establish a covered disability.
That makes documentation key, along with training. If a supervisor fails to recognize an employee’s request for accommodation, the employer may well be liable – even absent evidence of intentional discrimination.
Lastly, the class action epidemic that continues in most parts of the country will now likely expand further to encompass mass actions under ADAAA. Some such actions will be brought by the EEOC under pattern and practice theory. Others will be filed by plaintiffs seeking class certification under Rule 23. Previously, ADA’s individualized approach for analyzing “disability” status functioned to prevent such cases, which could not surmount Rule 23’s commonality and typicality hurdles. The EEOC’s repudiation of that approach could well mean a rise in class cases, e.g., by numerous individuals with a particular impairment, or numerous individuals having various impairments – all of them now protected.

For more information, please contact the Seyfarth attorney with whom you work or any Labor & Employment attorney on our website.