EEOC Issues Regulations Implementing the ADAAA – By: Christi Flaherty

Published by MoASBO, September 2011

In 2009 employers across the country heaved a sigh of defeat as the Americans With Disabilities Act Amendment Act (ADAAA) went into effect, undoing nearly a decade of employer-friendly court decisions.  With the ADAAA, Congress intended for courts to interpret the definition of “disability” in a much broader fashion, enabling more employees to receive the protections of the Act.  The ADAAA seeks to accomplish this goal by requiring employers to disregard the ameliorative effects of medication and assistive devices that may have an effect on an impairment, to treat individuals with episodic conditions, or conditions in remission, as still being “disabled” if the condition, when active, would substantially limit a major life activity.  The ADAAA also significantly expanded the definition of “major life activities” to include nearly every physiological function, including functions of the immune, musculoskeletal, neurological, circulatory and reproductive systems.

Congress, in its drafting of the ADAAA, also specifically stated that the Equal Employment Opportunity Commission’s (EEOC) then-current ADA regulations that defined the term “substantially limits” as meaning “significantly restricted” was too high and strict a standard.  Congress directed the EEOC to revise its regulations to be consistent with the intent and standards of the ADAAA.  On March 25, 2011, the EEOC issued its final regulations implementing the ADAAA.  The new regulations went into effect May 24, 2011.

First, the new regulations no longer refer to a “qualified individual with a disability.”  In order to be consistent with the ADAAA, the regulations now refer to simply and “individual with a disability” and a “qualified individual,” as two separate terms.  Discrimination is prohibited “on the basis of disability” rather than “against a qualified individual because of the disability of such individual.”  The EEOC, in answering questions about this change, states that it is intended to shift the focus from an inquiry into whether the individual is “disabled” to whether or not discrimination actually occurred.

Second, under the “regarded as” prong of defining “disability,” employees are no longer required to show that he or she is regarded by the employer as being substantially limited in a “major life activity” – the employee now must only show that he or she has been subjected to an action prohibited by the ADAAA because of an actual or perceived impairment that is not both “transitory and minor”.  If an employee is not seeking a reasonable accommodation, but rather is merely complaining of discrimination, then the case should proceed under the “regarded as” analysis, because an individual who proceeds under this analysis is not entitled to a reasonable accommodation.  In addition, the former definition of “major life activities” as the basic activities that most people can perform “with little or no difficulty” has been deleted, and replaced with a non-exhaustive list of “major life activities.”

Third, there is still no definition of “substantially limits;” however, the regulations set out nine “rules of construction” to determine whether an impairment is substantially limiting:

(1) The term “substantially limits” shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. “Substantially limits” is not meant to be a demanding standard. 

(2) An impairment is a disability within the meaning of this section if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. Nonetheless, not every impairment will constitute a disability within the meaning of this section.

(3) The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual’s impairment substantially limits a major life activity. Accordingly, the threshold issue of whether an impairment “substantially limits” a major life activity should not demand extensive analysis.

(4) The determination of whether an impairment substantially limits a major life activity requires an individualized assessment. However, in making this assessment, the term “substantially limits” shall be interpreted and applied to require a degree of functional limitation that is lower than the standard for “substantially limits” applied prior to the ADAAA.

(5) The comparison of an individual’s performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical analysis. Nothing in this paragraph is intended, however, to prohibit the presentation of scientific, medical, or statistical evidence to make such a comparison where appropriate.

(6) The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures. However, the ameliorative effects of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity.

(7) An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

(8) An impairment that substantially limits one major life activity need not substantially limit other major life activities in order to be considered a substantially limiting impairment.

(9) The six-month ‘‘transitory’’ part of “transitory and minor” exception to “regarded as” coverage does not apply to the definition of “disability” under the first prong (“actual disability”) or second prong (“record of” a disability). The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of this section.

Finally, in the appendix to the regulations, the EEOC states that the fact that an employee elects not to use mitigating measure is irrelevant to the determination of whether an impairment is substantially limiting, but it may be relevant in the determination of whether the employee is qualified or poses a threat to his/her safety or the safety of others

The result of the new regulations is that, while not every impairment will rise to the level of a “disability,” employers should shift their focus to the interactive process where accommodations are requested.   By focusing on the interactive process and reasonable accommodations rather than sifting through medical records to determine whether an employee is “disabled,” the employer can get back to what it does best – outlining expectations for performance and determining what it can do to better assist impaired employees in meeting those expectations.

Employers are advised, upon receipt of notification that an employee has an impairment that may require accommodations (for example, a prescription pad diagnosis or other medical report, or simply knowledge that the employee was involved in an accident resulting in an injury that will impact the employee’s ability to work), to request a meeting with the employee and his or her supervisor.  At this meeting, the employer should inquire as to the employee’s restrictions resulting from the impairment – preferably in the form of a medical certification from the employee’s treating physician.  The employer should then compare those restrictions to the employee’s job requirements.

This brings us to the subject of Job Descriptions.  Do you have them, particularly for every physically-intensive position (custodians, mechanics, cooks, groundskeepers and individual aides come to mind as positions in schools that require physical exertion)?  If not, put down this article right now and schedule meetings with department heads to discuss what the positions under their purview require.  If you are sitting in the Central Office every day, the chances are that you don’t know whether, or how often, the night custodian at your elementary school has to lift over fifteen pounds – but odds are, his supervisor does know this.  During this meeting, determine what are “essential” job functions – duties that go to the core of the position.  Prepare a written job description for each position, separating what are the essential job functions from those that are not often performed.  Why go to this effort?  Because even when an employee is “disabled,” an employer is not required to waive one of those “essential job functions” as an accommodation.

Once you have that written job description, you can compare it to the restrictions that are given to you by the impaired employee (or his physician).  If the restrictions impact the ability to perform the job functions in the job description, have a dialogue with the employee regarding what he wants you to do in order to perform the job.  For example, if the employee has a back injury and uses a back brace, he may request that he be allowed to wear the back brace while on the job.  Simply wearing the brace will likely be considered a “reasonable accommodation” in that it costs the employer nothing and does not interfere with the employer’s goals and objectives.

During this meeting with the employee and his supervisor, take notes.  Write down every request the employee makes, and every option discussed for how to, or whether, to satisfy the request.  If you deny a request for an accommodation, make sure you explain to the employee why you cannot meet the request.  This is particularly important if you are denying a request based on a financial hardship, as this is one of the few reasons that the EEOC will likely defer to your decision to deny a request.

At the conclusion of the meeting with the employee and his supervisor, establish what will happen going forward:  Do you need the employee to follow-up after he visits his physician to determine whether additional or fewer accommodations are necessary?  If so, make this clear to the employee.  If you are going to give the employee time off as an accommodation, establish a firm return-to –work date and inform the employee that you will require a fit-for-duty certification from his physician.  Following the meeting with the employee, send him a letter documenting that you had the meeting, outline the requests made by the employee, and the accommodations the District is able to make.  If the District rejected an accommodation request, make sure that you document the reason for the denial.  Finally, outline the expectations going forward, just as you did at the close of the in-person meeting.

What have you just prepared?  Aside from being best practice, you have also just created Exhibit A to the Position Statement that counsel will provide to the EEOC in the event that the employee files a Charge of Discrimination alleging a denial of accommodations.  Employers are advised to consult with counsel in preparing this letter to the employee.

© 2011 Mickes Goldman O’Toole, LLC

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