May 24, 2010

For two decades, the Americans with Disabilities Act (ADA) has governed many of the most common issues faced by employers.  The ADA landscape is now changing, however. A law passed in 2008, and a set of regulations that will be issued shortly, are greatly expanding the set of impairments or conditions that constitute “disabilities” and trigger an employer’s obligations to disabled employees.  Employers should be aware of how the new regulations broaden their obligations.

In January 2008, Congress passed the ADA Amendments Act (ADAAA) in order to broaden the definition of “disability” under the ADA. The ADAAA directed the Equal Employment Opportunity Commission (EEOC) to flesh out the new definition of disability by issuing a set of interpreting regulations. Last September, the EEOC issued a Notice of Proposed Rulemaking to provide specifics about the new definition of “disability.” The EEOC will almost certainly adopt these proposed regulations (29 C.F.R. § 1630) in roughly their present form. Employers, especially human resources professionals, need to understand how the definition of “disability” has been expanded.

The Origin of the EEOC’s Proposed Regulations
The easiest way to understand these changes is to understand the history of the ADAAA and the new proposed regulations. When the ADA was passed in 1990, it defined a “disability” as a physical or mental impairment that substantially limits one or more of an individual’s major life activities. However, it was not clear exactly what “impairment,” or “major life activity,” or “substantially limits” meant.  Of course, some cases were easy, such as blindness, paralysis, or loss of a limb. But employees began to bring ADA lawsuits based on traits that were not classic disabilities — traits like diseases, infertility, allergies, and conditions that can be fully mitigated by medication.  Thus the question of what constitutes a “disability” became a fertile source of litigation.

In the last decade or so, the courts began to narrow the definition of “disability.” In 1999, the Supreme Court declared that a person is not disabled if mitigating measures can reduce or limit the person’s difficulties. In 2002, the Supreme Court held that a person is not disabled unless the impairment “prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.” Some lower courts interpreted this standard strictly. As a result, much of the litigation in ADA cases centered on the question of whether the employee was disabled.

By January 2008, a broad political coalition had emerged to reverse the direction that the courts had taken and greatly broaden the set of employees who qualify as disabled.  Disability advocates, civil rights groups, and even the U.S. Chamber of Commerce supported a new law on the subject, which later became the ADAAA. In fact, support was so broad that the House of Representatives passed the original version of the ADAAA by a vote of 402 to 17, and both the House and the Senate passed the final version by a voice vote.

Congress decided to speak in strong terms in the ADAAA. The ADAAA specifically states that it is intended to overturn the Supreme Court’s decisions in the 1999 and 2002 cases, and that it is Congress’s intention that “the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.”

The ADAAA establishes, among other things: (i) that an impairment need not prevent or severely restrict performance of a major life activity to be a disability; (ii) that many diseases are disabilities; (iii) that an impairment that is episodic or in remission can still be considered a disability; and (iv) that the effect of most mitigating measures, such as medications, should be ignored in deciding whether a person is disabled. Under the last heading, a person is disabled even if measures such as hearing aids, cochlear implants and low vision devices can eliminate the impairment (people with eyeglasses and contact lenses, however, are not necessarily disabled).

In the text of the new law, Congress stated that the current EEOC regulations create too high a standard for defining disability, and expressed its expectation that the EEOC will revise its regulations to make them consistent with the ADAAA. Congress granted the EEOC the authority to issue regulations implementing the new, broader definition of disability.

What the New Regulations Will Likely Say
The ADAAA, like all legislation, left many specifics undecided. The proposed regulations flesh out the Act. The proposed regulations include many provisions that clarify the new, broader definition of “disability.” For example, they provide that:

1. Certain conditions will always be considered disabilities, including autism, cancer, cerebral palsy, diabetes, epilepsy, AIDS, multiple sclerosis, muscular dystrophy, major depression and bipolar disorder.
   
2. Disability will be determined by a comparison of the individual’s limitation to the ability of most people in the general population, and this comparison may often be made by common sense, without scientific or medical evidence.
   
3. If an individual is substantially limited in a “major life activity,” the individual is disabled whether or not he or she is limited in the ability to perform activities of central importance to daily life. The ADAAA contains a list of bodily functions that are considered to be “major life activities,” and the regulations add a further list, including the cardiovascular and musculoskeletal functions.
   
4. An employee whose limitations have been completely eliminated by medication or treatment can still be considered disabled. In fact, an employee who has been completely cured is considered disabled if his or her condition previously qualified as a disability. For example, an employee whose cancer has been treated, and whose doctor says he no longer has cancer, is nevertheless covered by the ADA, because he or she has a “record” of being disabled.
   
5. An employee who has ever been “misclassified” as having a disability is covered by the ADA. For example, the regulations say that an employee who in the past was misdiagnosed with bipolar disorder and hospitalized after having a temporary reaction to medication she was taking is covered, even if she never actually had bipolar disorder.
   
6. Certain impairments are disabilities for some people and not others. The list includes asthma, high blood pressure, learning disabilities, carpal tunnel syndrome and hyperthyroidism. For example, an employee with asthma may be disabled if the asthma causes the employee to have problems in the workplace with cleaning products, perfumes or cigarette smoke.
   
7. The ADA applies not just to discrimination based on a disability, but to discrimination based on symptoms, medication or treatment. For example, an individual who is not hired for a driving job because he takes anti-seizure medication has a disability. Thus, if an employer acts on the basis of a manifestation of the disability, it is no defense to say that the employer was not aware of the underlying disability. The regulations discuss the example of an employer who refuses to hire a person because that person has a facial tic. If the facial tic was caused by Tourette’s Syndrome, it does not matter whether the employer knew that the person had Tourette’s when it decided not to hire him. The fact that the employer acted on the basis of the facial tic is enough.

Understanding the New Proposed Regulations
The new proposed regulations establish just how broad the new definition of “disability” is. In discrimination cases, the focus will now likely be on whether the employer discriminated based on the trait, not on whether the trait is a disability. More employees will be entitled to request reasonable accommodations for their disabilities.  The EEOC expects that there will be an increase in requests for accommodations resulting from the ADAAA and the regulations, which will come mostly from people with those impairments that are now automatically defined as disabilities, such as diabetes and bipolar disorder. In its Notice of Proposed Rulemaking, the EEOC estimated that there are 450,000 to one million workers in the United States who have conditions that will automatically be considered disabilities under the regulations.

It would be an exaggeration to say that the proposed regulations mean that any employee who claims a disability must be treated as disabled. For one thing, the proposed regulations provide that temporary impairments of short duration with little or no residual effect are not disabilities. The examples that the proposed regulations give include the common cold, seasonal influenza, sprained joints, and a broken bone that is expected to heal completely.  However, an employer who is considering taking an adverse action against an employee (such as an unfavorable reassignment) because the employee has a condition like the flu or a broken bone should consult with an attorney about whether other laws, including state laws, prohibit the action.

There are other situations in which an employee who claims a disability is not disabled. An employer can defeat an employee’s lawsuit by showing that the plaintiff’s claimed disability is a fake.  Further, the ADA still contains a list of conditions that can never be considered disabilities, such as compulsive gambling, kleptomania, and disorders arising from the current use of illegal drugs.

At first glance, the reader may think that the proposed regulations create a “once disabled, forever covered by the ADA” rule. In a sense, that is true. They define the set of people with a “record of impairment” as including anyone who ever had a covered disability, with no time limit. But the ADA only protects the employee from discrimination based on the disability at issue. An employee who had cancer twenty years ago does not have a special protected status, unless the employer takes an action because the employee had cancer twenty years ago.

Some readers may wonder why the person who recovered from cancer is covered, while the person who had a broken bone that healed is not. The key is how long the condition was expected to last when it was first diagnosed. The broken bone was expected to heal completely after a “short duration” when it was first diagnosed.  The employee with the broken bone thus never met the definition of disability, and has no “record of impairment.” The cancer, on the other hand, was expected to be of longer duration when it was diagnosed, rendering the ill employee disabled. Because that employee was once disabled, he or she is permanently covered.

What Employers Should Do
The proposed regulations’ message to employers is clear: many conditions not covered before will now be disabilities under the ADA. Obviously, most employers, and even HR professionals, do not need to memorize all the specifics of the new proposed regulations.  What employers do need to remember, whenever a disability issue arises, is that the category of “disabilities” covered by the ADA will now be extremely broad. Whenever an employee requests an accommodation, or an employer becomes aware of a potential discrimination issue, the employer should have an attorney or HR professional consult the ADAAA and the regulations before deciding whether the employee is considered disabled under the ADA, even if it seems like a stretch to call the employee’s condition a disability.

The new regulations are available online at http://edocket.access.gpo.gov/2009/E9-22840.htm.

Also, since the ADAAA was passed, the Department of Labor’s Job Accommodation Network (JAN) has updated the numerous fact sheets and other documents on its website (http://askjan.org), which are designed to help employers. The JAN has created fact sheets on a huge number of specific disabilities, as well as sample reasonable-accommodation request forms for employers. Nevertheless, the best way for an employer to find out whether an employee’s condition is a disability under the new regulations is to consult an attorney who specializes in employmentdiscrimination matters.

The author, Michael Caldwell, can be reached at 203.672.3206 or [email protected].