You're listening to the Disability Law Lowdown podcast, Show number
57.
Jacquie Brennan: Hi, this is Jacquie Brennan and today's podcast show
is about the new regulations that were recently released by the Equal
Employment Opportunity Commission for the ADA Amendment's Act. The ADA
Amendments Act was passed on September 25th 2008 and became effective
January 1st 2009. And that law made a lot of changes to the definition
of disability. And in the law, it actually directed the Equal
Employment Opportunity Commission to amend its ADA regulations to
reflect the changes that were made by the ADA Amendments Act. And the
final regulations were published in the Federal Register making them
official on March 25th 2011. The EEOC is making changes to both the
Title 1 ADA regulations and to the interpretative guidance which is
known as Appendix that was published with the original ADA
regulations. And the regulations implement the law and the Appendix
provides further explanation on how the regulations should be
interpreted. The EEOC issued at the same time it issued the new
regulations and the new Appendix, it issued questions and answers to
provide information on the changes that were made to the regulations
as result of the ADA Amendments Act and identify certain regulations
that remain the same.
So we're going to go over some of those questions and answers to help
you understand better the new regulations. So one of the questions is,
do all of the changes in the ADA Amendments Act apply to other titles
of the ADA and provisions of the Rehabilitation Act prohibiting
disability discrimination by Federal Agencies, Federal Contractors,
and Recipients of Federal Financial Assistance? The answer is yes. The
ADAAA, the ADA Amendments Act, specifically states that all of its
changes also apply to Section 501 of the Rehabilitation Act which
covers Federal Employment, Section 503 of the Rehab Act which covers
Federal Contractors, and Section 504 of the Rehab Act which covers
Recipients of Federal Financial Assistance and services and programs
of Federal Agencies.
How does the ADA Amendments Act define disability? I know we've
covered this before in other Podcasts, but since we're talking about
the new regs this is a pretty important detail. The ADA Amendments Act
in the final regs define disability using a three-pronged approach,
which is actually the same definition that we had before, but the
interpretation is different now. So let me just go over the
definition. "A physical or mental impairment that substantially limits
one or more major life activities" also referred to in the
regulations, if you read them a lot, as actual disability. So if you
meet that first prong of the definition, then you are said to have an
actual disability. And the second prong is a record of a physical or
mental impairment that substantially limits a major life activity also
known as record of. And then the third prong which is that, the
covered entity the employer takes an action prohibited by the ADA
because of an actual or perceived impairment that is not both
transitory and minor. And that's the regarded as a prong of the
definition.
Must individuals use a particular prong of the definition of
disability when challenging an employer's actions? Not necessarily.
Claims for denial of reasonable accommodation must be brought under
one or both of the first two prongs of the definition of disability-.
So it has to be either an actual disability or a record of disability
if what your claim is for a denial of reasonable accommodation because
the ADA Amendments Act specifically states that those who are covered
only under the regarded as definition are not entitled to reasonable
accommodation. And the reason for that is pretty clear because if
you're only regarded as having a disability, then you don't actually
have a disability or a record of a disability that might need an
accommodation. You don't have a disability. You're just regarded as
having one.
Other types of allegations though like failure to hire or promote or
termination at your job or harassment can be brought under any part of
the definition. And an individual will find it easier to claim
coverage under the regarded as part of the definition norm. But it is
important to remember that these are not like three parts of the
definition. Well, I mean, it is three parts. But you don't have to
meet all of them. So, it's not like three requirements. It's just each
one separately. So you can meet one of the prongs of the definition
and be covered. In fact, in most cases, that will be the case.
Another question is, how do the regulations define the term physical
or mental impairment? The regulations the physical or mental
impairment as any physiological disorder or condition, cosmetic
disfigurement or anatomical loss affecting one or more body systems;
such as neurological, musculoskeletal, special sense organs,
respiratory including speech organs, cardiovascular, reproductive,
digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin,
and endocrine. They also cover any mental or psychological disorder
such as intellectual disability which was formerly called mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The definition of impairment in the
new regulations is almost identical to the definition in the EEOC's
original ADA regulations except that the immune and circulatory
systems have been added to the list of body systems that may be
affected by an impairment because these systems are specifically
mentioned in the ADA's examples of major bodily functions.
What are major life activities? The final regulations provide a
nonexhaustive meaning it doesn't have everything in the list, but it
has a list of examples of major life activities: 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. Most of these examples are taken from the
ADA Amendments Act which in turn adopted them from the original ADA
regulations and EEOC guidances or from the ADA in Rehabilitation Act
case law. The final regulations also state that major life activities
include the operation of major bodily functions including 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. Although these are not
specifically listed, the final regulations state that major body
functions include the operation of an individual organ within a body
system like the operation of a kidney, liver, or pancreas. As a result
of the ADA Amendment Acts, recognition of major bodily functions as
major life activities, it will be easier to find that individuals with
certain types of impairments have a disability.
When does an impairment substantially limit a major life activity? To
have an actual disability or to have a record of a disability, an
individual must be or have been substantially limited in performing a
major life activity as compared to most people in the general
population. Consistent with the ADA Amendments Act, the final
regulations adopt rules of construction to use when determining if an
individual is substantially limited in performing a major life
activity.
These rules of construction include the following. An impairment does
not need to prevent or severely or significantly limit a major life
activity to be considered substantially limiting. Nevertheless, not
every impairment will constitute a disability. The term "substantially
limits" should be construed broadly in favor of expansive coverage to
the maximum extent permitted by the terms of the ADA. The
determination of whether an impairment substantially limits a major
life activity requires an individualized assessment. In keeping with
Congress' direction that the primary focus of the ADA is on whether
discrimination occurred, the determination of disability should not
require extensive analysis. Although determination of whether an
impairment substantially limits a major life activity as compared to
most people will not usually require scientific, medical or
statistical evidence; such evidence may be used if appropriate. An
individual need only be substantially limited or have a record of a
substantial limitation in one major life activity to be covered under
the first or second prong of the definition of disability.
Can impairments that are episodic or in remission be considered
disabilities? Yes. The ADA Amendments Act in the final regulations
specifically state that an impairment that is episodic or in remission
meets the definition of disability if it would substantially limit a
major life activity when active. This means that chronic impairments
with symptoms or effects that are episodic rather than present all the
time can be a disability even if the symptoms or effects would only
substantially limit a major life activity when the impairment is
active. The Appendix provides examples of impairments that might be
episodic including epilepsy, hypertension, asthma, diabetes, major
depressive disorder, bipolar disorder, and schizophrenia. An
impairment like cancer that's in remission that may possibly return in
a substantially limiting form will also be a disability under the ADA
Amendments Act in the final regulations.
What are mitigating measures? Mitigating measures eliminate or reduce
the symptoms or the effect of an impairment. The ADA Amendments Act in
the final regulations provide a nonexhaustive, again that means this
list doesn't have possible thing but it's a really good list of
examples of mitigating measures. They include medication, medical
equipment and devices, prosthetic limbs, low vision devices like
devices that magnify a visual image, hearing aids, mobility devices,
oxygen therapy equipment, use of assistive technology, reasonable
accommodations, and learn behavior or adaptive neurological
modifications. In addition, the final regulations add psychotherapy,
behavioral therapy, and physical therapy to the ADA's list of
examples.
May the positive effects of mitigating measures in limiting the impact
of an impairment on performance of a major life activity be considered
when determining whether someone has a disability? No, and that's a
big change from the old ADA except for ordinary eye glasses or contact
lenses. The ADA in the final regulations direct that the positive or
what they call the ameliorative effects from an individual's use of
one or more mitigating measures be ignored in determining if an
impairment substantially limits a major life activity. In other words,
if a mitigating measure eliminates or reduces the symptoms or the
effect of an impairment that fact cannot be used in determining if a
person meets the definition of disability. Instead, the definition of
disability must focus on whether the individual would be substantially
limited in performing a major life activity without the mitigating
measure. This may mean focusing on the extent of limitations prior to
the use of the mitigating measure or what would happen if the
individual ceased using the mitigating measure.
Does the rule concerning mitigating measures apply only to people
whose vision is corrected with ordinary glasses or contact lenses? No.
Ordinary glasses or contact lenses defined in the ADA Amendments Act
in the final regulations as lenses that are intended to fully correct
visual acuity or to eliminate refractive error must be considered when
determining whether someone has a disability. For example, a person
who wears ordinary eye glasses for routine vision impairment is not,
for that reason, a person with a disability under the ADA. The
regulations do not establish a specific level of visual acuity for
determining whether eye glasses or contact lenses should be considered
ordinary. This determination should be made on a case by case basis in
light of current and objective medical evidence.
May the negative effects of a mitigating measure be taken into account
when determining whether a person meets the definition of disability?
Yes. The ADA Amendments Act allows considerations of the negative
effects of a mitigating measure in determining if a disability exists.
For example, the side effects that an individual experiences from
using medication for hypertension may be considered in determining
whether that individual is substantially limited in a major life
activity. However, it will often be unnecessary to consider the non-
ameliorative effects or those negative effects of mitigating measures
in order to determine whether an individual has a disability. For
example, it's unnecessary to consider the burdens associated with
receiving dialysis treatment for someone whose kidney function would
be substantially limited without this treatment.
Can an employer require that an individual use a mitigating measure?
No. An employer can't require an individual to use a mitigating
measure. However, failure to use a mitigating measure might affect
whether an individual is qualified for a particular job or even poses
a direct threat.
Do the regulations give any examples of specific impairments that will
be easily concluded to be substantially limiting in a major life
activity? Yes. The regulations identified examples of specific
impairments that should easily be concluded to be disabilities and
examples of major life activities including those major bodily
functions that the impairment substantially limit. These impairments
include deafness, blindness, intellectual ability formerly called
mental retardation, partially or completely missing limbs, mobility
impairments requiring the use of a wheelchair, 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.
When is someone substantially limited in a major life activity of
working? In certain situations, an impairment may limit someone's
ability to perform some aspect of his or her job, but otherwise is not
substantially limiting any other major life activity. In these
situations, the individual may be substantially limited in working.
However, with all of the changes made by the ADA Amendments Act, in
particular the inclusion of major bodily functions as major life
activities and revisions to the regarded as prong of the definition of
disability, it should generally be unnecessary to determine whether
someone is substantially limited in working. The final regulations
don't even mention the major life activity of working other than by
its inclusion in the list of major life activities, but the Appendix
discusses how to determine substantial limitations in a number of
major life activities including working. The Appendix discussion of
working states that the substantial limitation in this major life
activity will be made with reference to the difficulty performing
either a class or broad range of jobs in various classes rather than a
type of work. The Appendix also notes that a class of work may be
determined by reference to the nature of the work like commercial
truck driving or assembly line jobs or by reference to the job-related
requirements that an individual is limited in meeting such as jobs
requiring extensive walking, prolonged standing, and repetitive or
heavy lifting. Demonstrating a substantial limitation in performing
the unique aspects of a single specific job is not sufficient to
establish that a person is substantially limited in a major life
activity of working.
Does the ADA still exclude from coverage a person who is illegally
using drugs? Yes. The ADA Amendments Act did not make changes to the
part of the ADA that excludes from coverage a person who currently
engages in the illegal use of drugs when an employer acts on the basis
of such use. However, the ADA also still says that a person who no
longer engages in the illegal use of drugs may be an individual with a
disability if he or she has successfully completed a supervised drug
rehabilitation program, or has otherwise has been rehabilitated
successfully, or is participating in a supervised rehabilitation
program.
Is pregnancy a disability under the ADA Amendments Act? No. Pregnancy
is not an impairment and therefore cannot be a disability. Certain
impairments resulting from pregnancy like gestational diabetes, for
example, may be considered as disability if they substantially limit a
major life activity or if they meet one of the other two definitions
of disability.
When does an individual have a record of a disability? An individual
who does not currently have a substantially limiting impairment but
who has had one in the past meets this definition of disability. An
individual can also meet the record of definition of disability if she
was once misclassified as having a substantially limiting impairment,
like someone who was deemed to have a learning disability but did not.
All of the changes to the first definition of disability that we
already talked about include the expanded list of major life
activities, the lower threshold for finding substantial limitation,
the clarification that episodic impairments or those in remission may
be disabilities, and the requirement to disregard the positive effects
of mitigating measures will also apply in evaluating whether an
individual meets the record of definition of disability.
What does it mean for an employer to regard an individual as having a
disability? Under the ADA Amendments Act in the final regulations, a
covered entity that is an employer with 15 or more employees regards
an individual as having a disability if it takes an action that's
prohibited by the ADA based on an individual's impairment, or an
impairment that the employer believes the individual has; unless the
impairment is transitory, lasting or expected to last like six months
or less and minor. This new formulation of regarded as having a
disability is different from the original ADA formulation because that
required that the individual who wanted coverage under this part of
the definition had to show that an employer believed that the
individual's impairment, or perceived impairment substantially limited
a major life activity. An employer will regard an individual as having
a disability any time it takes a prohibited action against the person
because of the actual or perceived impairment regardless of whether
the employer's certs are even ultimately establishes a defense for its
actions.
Does the ADA Amendments Act change the definition of qualified direct
threat, reasonable accommodation, and undue hardship? Or does it
change who has the burden of proof in demonstrating any of these
requirements? No. Nearly all of the Amendments Act changes affect only
the definition of disability. None of those key ADA terms that I just
listed, like qualified direct threat, reasonable accommodations, undue
hardship; none of those have changed. And the burden of proofs that
are applicable along the way have not changed. The only provision in
the ADA affecting the reasonable accommodation obligation is that an
employer does not have to provide one to an individual who only meets
the regarded as part of the definition.
Why do the regulations no longer refer to a qualified individual with
a disability? Consistent with the ADA Amendments Act, the final
regulations now refer to an individual with a disability and qualified
individual as separate terms. They also now prohibit discrimination on
the basis of disability rather than against a qualified individual
with a disability because of the disability. The changes to the
regulations reflect changes made by the Amendments Act itself, which
are intended to make the primary focus of the ADA inquiry whether
discrimination occurred not whether an individual meets the definition
of disability. But of course an individual must still establish that
he or she is qualified for the job in question.
Will the EEOC be updating all of the ADA-related publication on its
website to be consistent with the final ADA Amendments Act regulation?
Yes. When EEOC updates a particular document, they'll note that on
their website and they'll explain the changes that were made to the
document. To avoid misunderstanding, all of the documents currently
contain notices that the ADA Amendments Act exist and that some of the
material and document may no longer reflect the law. And it should be
noted that because the Amendments Act focused almost exclusively on
changing the definition of disability, the contents that are in those
documents that are unrelated to that definition like the meaning of
qualified, essential functions, reasonable accommodations, and direct
threat remain unaffected by the ADA Amendments Act and its final
regulations. So individuals can continue to rely on those parts of the
document that don't affect the definition of disability.
For more information about the regulations or any of the laws that are
covered by the EEOC, please feel free to their website at eeoc.gov or
of course call the ADA center's toll free number at 1800-949-4232.
Thanks for tuning in.
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