The ADA Amendments Act of 2008 (“ADAAA”) has created new liability concerns for employers since it was enacted a few years ago. Specifically, the ADAAA protects, among other persons, “qualified individuals with a disability” from unlawful discrimination or harassment. It further requires employers to provide “reasonable accommodations” to such employees to enable them to perform essential job functions, with various exceptions. To further its stated purpose “to reinstate a broad scope of protection” by expanding the definition of the term “disability”, the ADAAA directed the U.S. Equal Employment Opportunity Commission (“EEOC”) to amend its Regulations to reflect the changes made by the ADAAA.
The EEOC final regulations interpreting the ADAAA became effective on May 24, 2011. Together, the ADAAA and accompanying EEOC final regulations extensively alter the interpretation of “disability.” Under the new interpretation, it is now easier for an employee to be found to have a disability that an employer with 15 or more employees must accommodate. The following provisions within the EEOC’s new regulations are perhaps the most noteworthy for employers:
- Impairments that constitute a "disability": While the Regulations retain the basic definition of the term “disability” (as a physical or mental impairment that substantially limits one or more life activities; a record or past history of such an impairment; or being regarded as having such an impairment), they change how those terms should be interpreted. Specifically, the Regulations charge employers to engage in an individualized assessment of each employee’s impairment. The Regulations identify certain impairments that will always be considered disabilities (including deafness, blindness, intellectual disabilities, partially or completely missing limbs or mobility impairments requiring the 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), but they also state that other unlisted impairments may also constitute disabilities. For example, in the latter category, the Regulations list cosmetic disfigurement or an impairment that is in remission or episodic but substantially limits a major life activity when active.
- Broad interpretation of "substantially limits": The Regulations adopt new “Rules of Construction” to determine when an individual is considered “substantially limited” in performing a major life activity. To be considered a disability, the particular impairment does not need to prevent or even severely limit an individual from performing a major life activity. In fact, the term is to be construed broadly. Indeed, the EEOC specifically declined to provide a minimum time limit for determining whether an individual is disabled. Also, the EEOC purposely did not set a minimum time period that the particular impairment’s effects must last for it to be considered “substantially limiting.” Therefore, impairments that last only a limited period of time can also be considered sufficiently severe to “substantially limit” a person’s activities.
- Mitigating measures: In a departure from the traditional analysis that was used to determine whether an individual has a disability, mitigating measures, such as drugs that control an impairment and assistive devices, should not be considered. However, ordinary eyeglasses and contact lenses can still be considered when an employer assesses whether an impairment substantially limits a major life activity.
- “Regarded as” having a disability: Pursuant to the new regulations, the focus for establishing coverage is on how a person has been treated because of a physical or mental impairment, rather than on what an employer believes about the nature of the person’s impairment. As such, the Regulations make it easier for an employee to establish that he or she is covered under the “regarded as” part of the definition of “disability” by doing away with the need to examine the “substantially limits” or “major life activities” aspect in the evaluation of such a claim.
Because the expanded definition of “disability” will likely prompt more requests for accommodations and result in an increase in discrimination claims, employers should develop new strategies to respond to requests for reasonable accommodation and defend against employee claims. As a result of the new Regulations, employers will no longer be able to defend disability discrimination claims based solely upon whether an employee is covered under the ADAAA. Rather, the focus of disability discrimination suits will likely shift to whether the employee and the employer engaged in a sufficiently interactive process, whether a reasonable accommodation was provided, and if not, why an individual was not accommodated. Employers will also continue to maintain the burden of proving “undue hardship” to proposed accommodations. Keep in mind that employers also have obligations under the West Virginia Human Rights Act when it comes to interacting with employees with a disability. Often, courts will look to federal law as guidance when interpreting their state obligations. However, employers must be careful to follow all state and federal regulations.
As a best practice, employers should update their policies and procedures that deal with disability and disability discrimination. Additionally, employers should train managers, supervisors and human resources professionals to determine when a reasonable accommodation might be needed pursuant to the ADAAA and the new Regulations. In order to maintain compliance with the new Regulations, employers should also ensure that complaints of disability discrimination are handled by properly trained individuals. Most importantly, employers should be careful to actively engage in an interactive process to determine what, if any, accommodations the employer can make for employees on a case-by-case basis.