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SHRM Newsletter: New ADAAA Regulations Issued

04/04/2011

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April 4, 2011

This is Utah SHRM Legal-mail no. 2011-6 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).

CONTENTS:

-  NEW ADAAA REGULATIONS ISSUED

MORE PEOPLE WILL BE COVERED BY THE LAW

HOW DO YOU DETERMINE SOMEONE HAS A DISABILITY? 

WHAT DOES ‘REGARDED AS’ DISABLED MEAN NOW?

-  THE REGULATIONS REDEFINE MAJOR LIFE ACTIVITIES

ARE THERE SPECIFIC IMPAIRMENTS WHICH ARE LIKELY DISABILITIES? 

-  DO THE NEW CHANGES INCLUDE ADA CONCEPTS SUCH AS QUALIFIED, DIRECT THREAT, REASONABLE ACCOMMODATION AND UNDUE HARDSHIP?

NEW ADAAA REGULATIONS ISSUED:  The Equal Employment Opportunity Commission (EEOC) now has issued its final regulations interpreting the Americans With Disabilities Act Amendments Act (ADAAA).  The full regulations are available at: http://www.federalregister.gov/articles/2011/03/25/2011-6056/regulations-to-implement-the-equal-employment-provisions-of-the-americans-with-disabilities-act-as  The  EEOC also has issued a fact sheet and sets of questions and answers to help employers understand the new regulations.  These resource materials are available at: http://www.eeoc.gov/laws/statutes/adaaa_info.cfm  Based on these various resource materials, here below- and in the EEOC’s own words- are some of the key concepts of the new regulations.  A few editorial comments are included.

MORE PEOPLE WILL BE COVERED BY THE LAW: “In enacting the ADAAA, Congress made it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the statute…The ADAAA states that the definition of disability should be interpreted in favor of broad coverage of individuals.”  This means when in doubt, and unless you are absolutely certain otherwise, assume someone is covered.

HOW DO YOU DETERMINE SOMEONE HAS A DISABILITY?  “[T]he regulations keep the ADA’s definition of the term “disability” as a physical or mental impairment that substantially limits one or more major life activities; a record (or past history) of such an impairment; or being regarded as having a disability. But the regulations implement the significant changes that Congress made regarding how those terms should be interpreted.”

“The regulations implement Congress’s intent to set forth predictable, consistent, and workable standards by adopting ‘rules of construction’ to use when determining if an individual is substantially limited in performing a major life activity. These rules of construction are derived directly from the statute and legislative history and include the following: (1) The term ‘substantially limits’ requires a lower degree of functional limitation than the standard previously applied by the courts. An impairment does not need to prevent or severely or significantly restrict a major life activity to be considered ‘substantially limiting.’ Nonetheless, not every impairment will constitute a disability; (2) The term ‘substantially limits’ is to be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA; (3) The determination of whether an impairment substantially limits a major life activity requires an individualized assessment, as was true prior to the ADAAA; (4) With one exception (‘ordinary eyeglasses or contact lenses’), the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures, such as medication or hearing aids; (5) An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; (6) In keeping with Congress’s direction that the primary focus of the ADA is on whether discrimination occurred, the determination of disability should not require extensive analysis.”  As noted above, this means when in doubt, and unless you are absolutely certain otherwise, assume someone is covered.

WHAT DOES ‘REGARDED AS’ DISABLED MEAN NOW? “Under the ADAAA and the final regulations, a covered entity ‘regards’ an individual as having a disability if it takes an action prohibited by the ADA ( e.g., failure to hire, termination, or demotion) based on an individual’s impairment or on an impairment the covered entity believes the individual has, unless the impairment is transitory (lasting or expected to last for six months or less) and minor. This new formulation of ‘regarded as’ having a disability is different from the original ADA formulation, which required an individual seeking coverage under this part of the definition to show that a covered entity believed the individual’s impairment (or perceived impairment) substantially limited performance of a major life activity.”

“As required by the ADAAA, the regulations also make it easier for individuals to establish coverage under the ‘regarded as’ part of the definition of ‘disability’…Under the ADAAA, the focus for establishing coverage is on how a person has been treated because of a physical or mental impairment (that is not transitory and minor), rather than on what an employer may have believed about the nature of the person's impairment. The regulations clarify, however, that an individual must be covered under the first prong (‘actual disability’) or second prong (‘record of disability’) in order to qualify for a reasonable accommodation.”  In other words, you cannot discriminate against someone you perceive is disabled (e.g. decline to put them in a job because you perceive they cannot do it based on their health) but you do not have to accommodate someone who is not actually disabled.

THE REGULATIONS REDEFINE MAJOR LIFE ACTIVITIES:  “The final regulations provide a non-exhaustive 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… 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… [M]ajor bodily functions include the operation of an individual organ within a body system ( e.g., the operation of the kidney, liver, or pancreas). As a result of the ADAAA’s 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.”   Again, the ADAAA expands the range of those covered by the law.

ARE THERE SPECIFIC IMPAIRMENTS WHICH ARE LIKELY DISABILITIES?  “Yes. The regulations identify examples of specific impairments that should easily be concluded to be disabilities and examples of major life activities (including major bodily functions) that the impairments substantially limit. The impairments include: deafness, blindness, intellectual disability (formerly known as mental retardation), partially or completely missing limbs, mobility impairments requiring 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.”  In these situations, and indeed in most situations where the claim for disability is even arguable, employers will want to just move on and focus on the issue of how to reasonably accommodate that person.

DO THE NEW CHANGES INCLUDE ADA CONCEPTS SUCH AS QUALIFIED, DIRECT THREAT, REASONABLE ACCOMMODATION AND UNDUE HARDSHIP? “No. Nearly all of the ADAAA’s changes only affect the definition of ‘disability.’ None of the key ADA terms listed in this Question, or the burdens of proof applicable to each one, have changed. The only provision in the ADAAA affecting the reasonable accommodation obligation is that a covered entity does not have to provide one to an individual who only meets the ‘regarded as’ definition of disability.”  Well, at least we got that going for us!

Written by: Employment Attorney, Michael Patrick O'Brien
Utah State and Salt Lake SHRM legal director
Email: mobrien@joneswaldo.com
Phone: 801-534-7315
Website: www.joneswaldo.com

Legal-mail is a legal and legislative update service sent out about twice a month to various Utah SHRM members and chapters. As a courtesy to SHRM, the Utah law firm of Jones Waldo Holbrook & McDonough P.C. underwrites the costs of the service. If you have any questions or comments, please contact Michael Patrick O'Brien.

Disclosure: These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.