The EEOC has issued proposed regulations for enforcing the ADA Amendments Act of 2008 (ADAA), a sweeping law that took effect earlier this year. Among the changes: a new definition of what constitutes a disability. With the EEOC in charge of suing to force compliance, you need to know the answers to these 10 questions.
1. How does the ADAAA define “disability”?
The ADAAA defines a disability as:
- a physical or mental impairment that substantially limits a major life activity; or
- a record of a physical or mental impairment that substantially limited a major life activity; or
- when an entity (e.g., an employer) takes an action prohibited by the ADA based on an actual or perceived impairment.
In the questions below, we address each of these three definitions and changes the ADAAA makes to some of the key terms they use.
2. What are “major life activities”?
They are basic activities that most people in the general population can perform with little or no difficulty. The ADAAA provides a non-exhaustive list of examples of major life activities. Many are drawn from the 1991 ADA regulation and subsequent EEOC guidances, or from ADA and Rehabilitation Act court cases. Examples of major life activities include 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. Three of these examples—sitting, reaching and interacting with others—are not specifically included in the ADAAA’s non-exhaustive list of major life activities, but are included in the proposed regulation.
The ADAAA also says that major life activities include the operation of major bodily functions, including functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, circulatory, respiratory, endocrine and reproductive functions. The proposed ADA regulation adds several other examples—hemic, lymphatic, musculoskeletal, special sense organs and skin, genitourinary, and cardiovascular.
The purpose of adding major bodily functions to the list of major life activities is to make it easier to find that individuals with certain types of impairments have a disability. For example, cancer affects the major bodily function of normal cell growth and diabetes affects the major bodily function of the endocrine system. (See proposed regulation section 1630.2(i) and its corresponding Appendix section.)
To meet one of the first two definitions of “disability,” an individual must either have an impairment that substantially limits performance of one major life activity or have a record of an impairment that substantially limited one major life activity. It does not matter if the major life activity is from the first list (such as hearing or lifting) or the new list of major bodily functions. It is possible in many situations that an individual will be substantially limited (or have a record of such a limitation) in more than one major life activity.
3. When does an impairment “substantially limit” a major life activity?
To have a disability (or to have a record of a disability), an individual must be substantially limited in performing 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 in performing a major life activity to be considered “substantially limiting.” All of these tests of substantial limitation were deemed by Congress to be too demanding.
Rather, determination of whether an individual is experiencing a substantial limitation in performing a major life activity is a common-sense assessment based on comparing an individual’s ability to perform a specific major life activity (which could be a major bodily function) with that of most people in the general population. However, the proposed regulation says that temporary, non-chronic impairments of short duration with little or no residual effects usually will not be considered disabilities. (See proposed regulation section 1630.2(j) and its corresponding Appendix section.)
4. What are mitigating measures?
Mitigating measures eliminate or reduce the symptoms or impact of an impairment. The ADAAA provides a non-exhaustive list of examples of mitigating measures, which the EEOC has included in the proposed regulation.
They include medication, medical equipment and devices, prosthetic limbs, low vision devices (e.g., devices that magnify a visual image), reasonable accommodations, and even behavioral modifications. In addition, the EEOC’s proposed regulation includes as another example of a mitigating measure surgical interventions that do not permanently eliminate an impairment.
5. May the effects of mitigating measures be considered when determining whether someone has a disability?
The ADAAA directs that the positive 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 impact of an impairment, that fact cannot be used in determining if a person meets the definition of disability. Instead, the determination of disability must focus on whether the individual would be substantially limited in performing a major life activity without the mitigating measure.
6. Does the rule concerning mitigating measures apply to people whose vision is corrected with eyeglasses or contact lenses?
No. “Ordinary eyeglasses or contact lenses”—defined in the ADAAA and the proposed regulation as lenses that are “intended to fully correct visual acuity or eliminate refractive error”—are considered when determining whether someone has a disability. (See proposed regulation section 1630.2(j)(3) and corresponding Appendix section 1630.2(j).)
7. Can the negative effects of a mitigating measure be taken into account in determining if an individual meets the definition of “disability”?
Yes. The ADAAA allows consideration of the negative effects from use of a mitigating measure in determining if a disability exists. For example, the side effects that an individual experiences from use of medication for hypertension may be considered in determining whether the individual is substantially limited in a major life activity.
8. Can the positive or negative effects of mitigating measures be considered when assessing whether someone is entitled to reasonable accommodation or poses a direct threat?
Yes. The ADAAA’s prohibition on assessing the positive effects of mitigating measures applies only to the determination of whether an individual meets the definition of “disability.” All other determinations—including the need for a reasonable accommodation and whether an individual poses a direct threat—can take into account the positive and negative effects of a mitigating measure.
For example, if an individual with a disability uses a mitigating measure that eliminates the need for a reasonable accommodation, then an employer will have no obligation to provide one.
9. Can impairments that are episodic or in remission be considered disabilities?
Yes. The ADAAA and the proposed regulation 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 proposed regulation says that examples of impairments that are episodic include epilepsy, hypertension, multiple sclerosis, asthma, diabetes, major depression, bipolar disorder and schizophrenia.
Similarly, if an impairment such as cancer is in remission, but there is a possibility that it could return in a substantially limiting form, then under the ADAAA this would meet the definition of “disability.” (See proposed regulation section 1630.2(j)(4) and corresponding Appendix section 1630.2(j).)
10. Are there impairments that will consistently meet the definition of disability?
Yes. The proposed regulation says that some impairments due to certain characteristics associated with them will consistently meet the definition of disability when analyzed in light of the ADAAA’s directives that:
- the term “disability” shall be construed broadly
- an impairment’s substantial limitation on a major bodily function is sufficient to constitute a disability
- the ameliorative effects of mitigating measures (other than ordinary eyeglasses or contact lenses) shall be disregarded
- impairments that are episodic or in remission are disabilities if they would be substantially limiting when active.
The proposed regulation identifies the following as examples of impairments that consistently will meet the definition of “disability”: 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.
The individualized assessment of whether a substantial limitation exists can be done very quickly and easily with respect to these types of impairments, and will consistently result in a finding of disability. This is not an exhaustive list of examples, which means that impairments not listed in the proposed regulation could still consistently meet the definition of disability.
The proposed regulation also provides examples of impairments that may be substantially limiting for some individuals but not for others. These types of impairments, which include asthma, back and leg impairments, and learning disabilities, may require somewhat more analysis to determine whether they are substantially limiting for a particular individual than those impairments that consistently meet the definition of “disability,” although the level of analysis required still should not be extensive. (See proposed regulation sections 1630.2(j)(5) and (6), and corresponding Appendix section 1630.2(j).)