The Americans With Disabilities Act’s (“ADA”) employment provisions became operative in 1992. Since then, the Equal Employment Opportunity Commission (“EEOC”) has issued hundreds of pages of regulations, technical assistance, and whitepapers. The courts have issued countless opinions interpreting the act. And employers, consultants, and doctors have implemented policies and protocols for dealing with applicants’ and employees’ requests for reasonable accommodation.

But President George W. Bush signed into law the ADA Amendments Act of 2008 (“ADAAA”). Congress says the ADAAA’s purpose is to correct and clarify the ADA’s original meaning. To some, though, the ADAAA greatly expanded the ADA’s originally intended scope.

Either way, (nearly) everything you know about the ADA is wrong. The ADAAA rendered obsolete significant judicial and agency interpretations, primarily regarding the ADA’s definition of “disability.” To help employees, employers and the courts interpret the revised ADA, the EEOC, on September 23, 2009, published a Notice of Proposed Rulemaking in the Federal Register (“NPRM”). The NPRM proposes revisions to the ADA’s current regulations to reflect the ADAAA’s changes. The proposed regulations are open for public comment for a 60-day period that ends on November 23, 2009. The EEOC will evaluate the submitted comments and may make revisions. The end result, perhaps after several rounds of comment and revision, will be new regulations interpreting the ADA. Some highlights of the proposed changes follow.

Changes to Definitions.

The ADA’s definition of “disability” is an impairment that substantially limits one or more major life activities, a record of such impairment, or being regarded as having such an impairment. The ADAAA did not change this basic definition, but added additional statutory guidance expanding its meaning. The proposed regulations change how to interpret “substantially limits,” “major life activities,” and “regarded as” consistent with Congress’ stated intent.

Substantially Limits. ” The ADAAA and proposed regulations significantly relax the definition of what impairments “substantially limit” major life activities. Under the current regulations, an impairment may substantially limit a major life activity if it is “significantly restricted as to the condition, manner or duration under which an individual can perform a particular life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.”

The proposed regulations require courts to ignore whether “mitigating measures,” such as medication, ameliorate an impairment’s effects. For example, a diabetic may take insulin that helps control blood sugar, such that he or she may function nearly normally. Going forward, the evaluation of a “substantial limitation” must be based on the individual’s non-medicated condition. An insulin-dependent diabetic without insulin is highly limited. However, the ADAAA and regulations permit courts to consider whether eyeglasses or contact lenses mitigate a vision impairment.

The proposed regulations state that an impairment does not have to “prevent, or significantly or severely restrict” a major life activity to be considered a disability. Moreover, the condition, manner, or duration of the restriction no longer has any bearing on determining whether an individual is substantially limited from performing a major life activity.

Under the proposed regulations, an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. The EEOC lists several examples, including epilepsy, cancer, depression, hypertension, asthma, bipolar disorder, and post-traumatic stress disorder. Under prior interpretations, an epileptic who rarely had a seizure, or an individual who did not suffer symptoms of a disease in remission, likely would not have a “substantial limitation” on a major life activity.

Finally, the regulations suggest that several impairments ordinarily will qualify as disabilities. These include: “deafness, blindness, intellectual disability (formerly known as mental retardation), partially or completely missing limbs, mobility impairments requiring use of a wheelchair (a mitigating measure), 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.” In the past, there were no “per se” disabilities.

On the other hand, temporary, non-chronic impairments of short duration with little or no residual effects usually will not be considered disabilities. These include the common cold, seasonal or common influenza, a sprained joint, minor and non-chronic gastrointestinal disorders, or a broken bone that is expected to heal completely. The proposed regulation’s appendix also suggests that appendicitis and seasonal allergies are not disabilities.

Major Life Activities. ” The EEOC’s regulations incorporate the ADAAA’s expanded definition of “major life activities.” The EEOC proposes two non-exhaustive lists of qualifying activities, including 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, working, and the operation of major bodily functions (e.g., digestive, reproductive, and immune systems).

Regarded As” Having a Disability. The EEOC’s proposed regulations also account for the ADAAA’s expansion of the definition of “regarded as” being disabled. To succeed on a “regarded as” claim, an individual need show only that the employer took a negative action because the employer regarded the employee as having an impairment. The employee need not prove the employer regarded the impairment as substantially limiting. But the impairment must be more than “minor” or “transitory.” The proposed regulations provide several examples of transitory and minor impairments, such as a broken or sprained bone that is expected to heal normally. The regulations also provide examples of impairments that the EEOC would not consider minor and transitory, such as Hepatitis C or heart disease. The “regarded as” employee is not entitled to reasonable accommodation and must establish he or she is “qualified” to do the job.

The EEOC also explains that an employer may regard an individual as disabled if it takes an action based on a symptom of an impairment. The EEOC provides examples of how this applies. In one example, an employer refuses to hire someone with a facial tic who does not know the facial tic is cause by Tourette’s Syndrome. The EEOC would consider the employer in this hypothetical to have regarded the individual as disabled even though it did not know the individual had Tourette’s.

Qualification Standards and Tests Related to Uncorrected Vision

The EEOC’s proposed revisions also include a section prohibiting employers from using qualification standards, employment tests, or other selection criteria based on an individual’s uncorrected vision. That is, the test conditions normally must allow for the individual to wear glasses or contact lenses. The only exception is if the standard, test, or selection criteria is related to the position at issue and consistent with business necessity.

Differences Between the ADAAA and California’s Fair Employment and Housing Act

The Fair Employment and Housing Act’s (“FEHA”) anti-disability discrimination provisions have been considered much broader than the ADA’s since 2000, when the Legislature passed Assembly Bill 2222. But after the ADAAA, the gap between the ADA and the FEHA is narrowing. For example, the ADA now mirrors the FEHA in prohibiting the consideration of mitigating measures when determining if an individual has a disability. Both laws’ expansive coverage of disabilities will be similar.

Several important differences between the laws remain, however. First, the ADA applies only to employers who have 15 or more employees. Employers with just five employees are subject to FEHA. The ADA incorporates caps on damages authorized by the Civil Rights Act of 1991. FEHA does not limit damages. Under FEHA, employees may sue because the employer did not engage in a good faith, interactive process, for determining whether reasonable accommodation is feasible. Under the ADA, there is no separate cause of action for failure to engage in the interactive process.

Conclusion

The EEOC’s proposed regulations are not final, but the ADAAA is. Therefore, employers must be prepared to comply with the new federal law now. California employers are not likely to experience significant changes, or see a significant increase in disability discrimination litigation. However, multi-state employers will probably see more requests for reasonable accommodation and, potentially, more discrimination complaints and lawsuits. In addition, employers must revise their methods for evaluating whether employees or applicants are qualified to do the job with or without accommodation.

More information about the EEOC’s Notice of Proposed Rulemaking, including helpful Q&As, is available at http://www.eeoc.gov/press/9-16-09f.html.

The proposed regulations are also available at http://edocket.access.gpo.gov/2009/pdf/E9-22840.pdf.

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