the adaaa: what institutions need to know...
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The ADAAA: What Institutions Need to Know About
EEOC’s New Rules
Presented by
Teresa L. Jakubowski, Partner
BARNES & THORNBURG LLPCUPA-HR WebinarJune 2, 2011
Sponsored by
• Background of the ADA Amendments Act (“ADAAA”), P.L. No. 110-325
• Key Aspects of EEOC’s Final Regulations,76 Fed. Reg. 16,978 (Mar. 25, 2011)
• Practical Implications
Agenda
Teresa L. Jakubowski
Partner, Washington, D.C.
ADA Amendments Act of 2008
• President George W. Bush signed the ADAAA into law on September 25, 2008.
• The ADAAA took effect on January 1, 2009.• EEOC’s regulations took effect on May 24, 2011.
Primary Objective of the ADAAA
To “restore the intent and protections” of the original statute, enacted in 1990, by:
• Revising the definition of disability (1st and 3rd prongs);
• Broadening coverage under the ADA by overturning certain decisions of the U.S. Supreme Court;
Primary Objective of the ADAAA (cont’d)
• Clarifying that enforcing agencies also have authority to issue regulations regarding the definition of “disability”;
• Expressing Congress’s intent that courts focus on whether covered entities have complied with their obligations under the ADA; and
• Expressing Congress’s intent that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.
ADAAA’s Definition of “Disability”
The ADAAA retains the basic 3-part definition by defining “disability” as:
– A physical or mental impairment that substantially limits a major life activity;
– A record of such an impairment; or
– Being regarded as having such an impairment.
But adopts provisions affecting the interpretation of that definition.
Changes Impacting the Definition of “Disability”
• “Major Life Activities”
• Mitigating Measures
• “Substantially Limits”
• Episodic Conditions
• “Regarded as” claims
What the ADAAA Does Not Change
• Impairment
• Reasonable accommodation
• Undue hardship
• Interactive process
• Qualified
“Major Life Activities”
• ADA: Did not define “major life activity.”
– EEOC’s original regulations listed examples, 29 C.F.R. §1630.2(i).
– U.S. Supreme Court: activities “of central importance to most people’s daily lives.” Toyota Motor Mfg., Ky. Inc. v. Williams, 534 U.S. 184 (2002).
• ADAAA: Provides two illustrative, non-exhaustive lists of “major life activities” and “major bodily functions.”
List of Major Life Activities
• ADAAA:
– caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.
• Revised 29 C.F.R. § 1630.2(i):
– Adds reaching, sitting and interacting with others.
– Specifies that “major” shall not be interpreted to create a demanding standard for “disability.”
– Specifies that MLA is not determined by reference to whether it is “of central importance to daily life.”
“Major Bodily Functions”
• ADAAA expressly includes “major bodily functions” within the concept of major life activities:
– Functions of the immune system; normal cell growth; and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.
• Revised 29 C.F.R. § 1630.2(i)(1)(ii) adds:
– Functions of the special sense organs and skin; genitourinary, cardiovascular, hemic (blood), lymphatic and musculoskeletal systems.
Major Life Activity of “Working”
• Original 29 C.F.R. § 1630.2(j): to be substantially limited in “working,” had to be disqualified from a “class or broad range” of jobs as compared to those with comparable training, skills and disabilities.
• ADAAA: merely included in list of MLAs.
• Revised 29 C.F.R. § 1630.2(j):
– Regulatory provisions deleted; discussed in interpretive guidance.
– “Class” and “broad range” of jobs will be applied in a more straightforward and simple manner than prior to the ADAAA.
– An individual with a disability usually will be substantially limited in another MLA, making it unnecessary to consider whether the individual is substantially limited in working.
Mitigating Measures
• The ADAAA overturns the U.S. Supreme Court’s rulings in Sutton v. United Airlines, Inc., 527 U.S. 471 (1999), and its companion cases.
• “Substantially limits” determination must be made without regard to the ameliorative effects of mitigating measures, such as:
– medication, medical supplies, equipment, low vision devices, prosthetics, hearing aids, cochlear implants or other implantable hearing devices, mobility devices and oxygen therapy equipment and supplies;
– use of assistive technology;
– reasonable accommodations or auxiliary aids or services;
– learned behavioral or adaptive neurological modifications; or
– psychotherapy, behavioral therapy, or physical therapy. 29 C.F.R. § 1630.2(j)(5).
Eyeglasses Exception
• Ordinary eyeglasses and contact lenses “shall” be taken into account in determining “disability”.
– Definition: “lenses that are intended to fully correct visual acuity or eliminate refractive error.” 29 C.F.R. § 1630.2(j)(6).
– Distinguished from mitigating measures: “low vision devices,” defined as “devices that magnify, enhance, or otherwise augment a visual image, but not including ordinary eyeglasses and contact lenses.” 29 C.F.R. § 1630.2(j)(5)(i).
“Substantially Limits”
• The ADAAA rejects the term “substantially limits” as defined by the U.S. Supreme Court and EEOC and directs that it be construed in favor of broad coverage.
– Rejects the U.S. Supreme Court’s holding in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), that the ADA requires a “demanding standard” for establishing coverage and that an impairment “severely restrict” major life activities.
– Rejects the EEOC’s prior regulation defining “substantially limits” as “significantly restricted.”
Rules of Construction29 C.F.R. § 1630.2(j)(1)
1. “Substantially limits” shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA, and is not meant to be a demanding standard.
2. An impairment is a disability if it “substantially limits” the ability of an individual to perform a MLA “as compared to most people in the general population.”
3. Primary focus of cases should be on whether covered entities have complied with their obligations and whether discrimination has occurred. “Substantially limits” determination should not demand extensive analysis.
Rules of Construction (cont’d)
4. Determination requires an individualized assessment, but shall be interpreted as requiring a degree of functional limitation lower than applied prior to the ADAAA.
5. Determination “usually” will not require scientific, medical or statistical analysis.
6. Determination must be made without respect to the ameliorative effects of mitigating measures.
Rules of Construction (cont’d)
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 MLA need not also substantially limit other MLAs.
9. The exception for transitory and minor impairments under the “regarded as” prong does not apply to the “actual disability” or “record of” prongs.
Factors to Consider
• “May be useful in appropriate cases to consider, as compared to most people in the general population:”
– Condition under which the individual performs the MLA;
– Manner in which the individual performs the MLA; and/or
– Duration of time it takes the individual to perform the MLA or for which the individual can perform the MLA. 29 C.F.R. § 1630.2(j)(4)(i).
• Focus should be on how the MLA is substantially limited and not on what outcomes an individual can achieve. 29 C.F.R. §1630.2(j)(4)(iii).
Impairments that are Disabilities in “Virtually All Cases”
• EEOC’s final regulations identify impairments that will “virtually always” meet the definition of “disability”:
– Blindness, deafness, intellectual disabilities, partially or completely missing limbs, mobility impairments requiring the use of 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. 29 C.F.R. § 1630.2(j)(3)(iii).
Changes to “Regarded As”
• Individual is covered under the ADA if the individual establishes that he/she was subjected to a prohibited act because of an actual or perceived physical or mental impairment. 29 C.F.R. § 1630.2(l).
• No need to demonstrate that an impairment is “substantially limiting.”
• Exception: Impairments that are transitory and minor. 29 C.F.R. § 1630.15(f).
– “Transitory”: actual or expected duration of 6 months or less.
Changes to “Regarded As” (cont’d)
• Individual is regarded as having a disability any time the individual is subjected to a prohibited action based on individual’s actual or perceived impairment (that is not transitory and minor). 29 C.F.R. §1630.2(l)(1).
– Coverage under the “regarded as” prong does not itself establish liability.
• Individuals “regarded as” disabled are not entitled to reasonable accommodation.29 C.F.R. §§ 1630.2(o)(4), 1630.9(e).
Other Provisions
• Individuals with a “record of” a disability can be entitled to reasonable accommodation. 29 C.F.R. § 1630.2(k)(3).
• Employers using uncorrected vision standards as a qualification standard for certain jobs must show that they are job-related and consistent with business necessity. 29 C.F.R. § 1630.10(b).
• Reverse discrimination claims based on a lack of a disability are not actionable under the ADAAA. 29 C.F.R. § 1630.4(b).
• The ADAAA does not change the standards for determining eligibility under state worker’s compensation laws or under state or federal disability benefit programs. 29 C.F.R. § 1630.1(c)(3).
Practical Implications
• Increase in covered conditions– Employers must tread carefully: any employee with a medical
condition could be “disabled”.
• Reasonable accommodations– Because more and more individuals will be deemed “disabled,”
employers should be prepared for more reasonable accommodation requests.
– Must be considered, even for employees with minor restrictions.
– Participate in the “Interactive Process”.
– Establishing a framework for, and training managers/supervisors with respect to, handling such requests will be critical.
– Document, document, document.
Practical Implications (cont’d)
• Litigation
– More focus on challenged employment decision and less on whether the individual has a disability.
– Likely more difficult for employers to win at the summary judgment stage.
Contact Information
Teresa L. Jakubowski
Barnes & Thornburg LLP
1717 Pennsylvania Ave., N.W., Suite 500
Washington, D.C. 20006
(p) (202) 371-6366
(f) (202) 289-1330
The ADAAA: What Institutions Need to Know About
EEOC’s New Rules
Sponsored by