Proposed New ADA Regulations Present Challenges For Employers

Proposed regulations, which would implement statutory changes to the Americans with Disabilities Act (ADA), were recently published for public comment. Proposed by the Equal Employment Opportunity Commission (EEOC), the regulations are designed to implement statutory amendments that went into effect earlier this year that expanded the number of medical conditions that qualify as “disabilities” under the ADA. The proposed regulations add additional elements of exposure for employers to worry about.  

Last year, in response to several Supreme Court decisions, Congress enacted amendments to the Americans with Disabilities Act to broaden the number of people who would be covered by the Act. The ADA protects individuals who (1) have an impairment that substantially limits one or more major life activities, (2) have  a record of such an impairment, or (3) are regarded as having such an impairment. While this general definition was not changed, Congress re-interpreted several key terms – in effect, lowering the threshold for an individual to qualify as “disabled.” Congress also directed the EEOC to issue regulations to implement these statutory changes. On September 23, 2009, EEOC issued the proposed regulations, allowing for a 60-day comment period. 

Several of the major changes under the proposed regulations and amended statute include:

  • An expanded list of major life activities that trigger coverage under the ADA. The ADA amendments include new examples of major life activities, such as caring for oneself, performing manual tasks, seeing, hearing, sitting, concentrating, communicating and so forth.  The proposed regulations add reaching and interacting with others. 
  • The ADA amendments make clear that the operation of certain bodily functions, such as the immune, digestive, endocrine, and reproductive systems, also constitute major life activities. The proposed regulations add hemic, lymphatic, musculoskeletal, special sense organs and skin, and genitourinary and cardiovascular systems. 
  • The ADA amendments lower the threshold for determining if an individual is “substantially limited” in a major life function.  To meet the test, an individual need not be “significantly or severely” restricted but only substantially limited as compared to most people in the general population. The proposed regulations add that temporary, non-chronic impairments of short duration with little or no residual effects will generally not be considered disabilities.
  • The ADA amendments provide that impairments that are episodic or in remission may qualify for protection, if, when active, they substantially limit a major life activity. The proposed regulations provide examples of such conditions, including epilepsy, hypertension, multiple sclerosis, asthma, cancer, depression, bipolar disorder, and post-traumatic stress disorder. 
  • The ADA amendments indicate that most forms of mitigating measures (other than ordinary eyeglasses or contact lenses) should not be considered in assessing disability status. The amended statute lists examples of mitigating measures, such as medication and medical equipment and devices, such as hearing aids and prosthetic limbs. The proposed regulations add surgical interventions that do not permanently eliminate an impairment.
  • The proposed regulations indicate that some impairments, based on their inherent characteristics, will consistently meet the new lowered standard. These impairments include deafness, blindness, intellectual disability (formerly known as mental retardation), partially or completely missing limbs, mobility impairment requiring use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia. The proposed regulations indicate that other conditions, such as asthma, high blood pressure, carpal tunnel syndrome, hyperthyroidism, back and leg impairments, and certain psychiatric impairments and learning disabilities, would still need an individualized determination to assess whether the condition meets the statutory criteria. 
  • The ADA amendments indicate that an employer “regards” an individual as having a disability if it takes a prohibited action – such as discriminatory failure to hire, termination or demotion – based on an impairment or a perceived impairment  (except for minor and transitory impairments). As a result, there need not be a showing that the employer perceived the individual as having an impairment that substantially limits a major life activity. The amendments make clear that the duty to accommodate does not apply to individuals who qualify for disability status solely under the “regarded as” prong. The proposed regulations implement these changes. 

As a result of these changes, more individuals will qualify for the protections of the Americans with Disabilities Act, increasing employers’ exposure to disability discrimination claims. In an effort to comply with these changes, employers should:

  • Make sure that they are recognizing and responding appropriately to requests for reasonable accommodation. 
  • Make all decisions based on objective medical evidence. Employers frequently run into problems when they make assumptions that a person with a particular medical condition cannot perform a particular job. 
  • Make sure that managers and supervisors are trained on the legal requirements of the ADA amendments and the new regulations.

If you would like more information about the proposed regulations, please contact Itia S. Roth, the author of this Alert, at 617 456 8061 or iroth@princelobel.com.