The Americans with Disabilities Act (ADA) prohibits discrimination in a wide range of areas, including employment, public services, and public accommodations for people who are deemed to have a disability.
Title I of the ADA prohibits disability-based discrimination in employment. The Equal Employment Opportunity Commission (EEOC) is the agency responsible for enforcement of Title I of the ADA. Under Title I of the ADA, covered entities may not discriminate against qualified individuals based on disability regarding job application procedures, hiring, advancement or discharge of employees, employee compensation, job training, or other terms, conditions, and privileges of employment. (See 42 U.S.C. 12112(a))
In 2008, Congress passed the Americans with Disabilities Act Amendments Act (ADAAA). The ADAAA went into effect January 1, 2009 and directed the EEOC to amend its ADA regulations to reflect changes made in the ADAAA. As of March 25, 2011, these new ADA regulations promulgated by the EEOC were published in the Federal Register. The regulations are in affect and will be enforced as of May 24, 2011.
The regulations apply to all private employers with 15 or more employees and employers who are federal contractors or subcontractors. Certain sections of the new regulations may apply to businesses with less than 15 employees if they are considered places of public accommodation. Additionally, state, and local laws may apply to employers with less than 15 employees.
Under the new regulations, employers are required to provide accommodations for a new range of issues and diseases based upon the expansion of the term “disability.” The new regulations do not change the ADA definition of “disability,” but broaden how the language of that definition is to be interpreted. A “disability” is still defined as “a physical or mental impairment that substantially limits one or more major life activities; a record (or history) of such an impairment; or being regarded as having a disability.”
Under the original ADA a “disability” was considered to be constantly “debilitating.” The ADAAA and the new regulations provide an “impairment need not prevent or severely or significantly restrict performance of a major life activity to be considered a disability.” Whether an impairment is a “disability” should be construed broadly, to the maximum extent allowable under the law.
In enacting the ADAAA, Congress made it easier for an individual seeking protection under the ADA to establish the individual has a disability. In broadening the definition of “disability,” the ADAAA overturned several Supreme Court decisions Congress believed were interpreted too narrowly, resulting in denial of protection for many individuals with impairments such as cancer, diabetes, and epilepsy. “The primary purpose of the ADAAA is to make it easier for people with disabilities to obtain protection under the ADA.” (See Part 1630 of the EEOC’s new regulations)
Individuals seeking protection under anti-discrimination provisions of the ADA generally must allege and prove they are members of the ‘‘protected class.’’ Under the ADA, this typically means they have to show they meet the statutory definition of ‘‘disability.’’ However, in the ADAAA Congress makes clear it did not intend for the threshold question of disability to be used as a means of excluding individuals from coverage.
Previously, the burden of proof was on the individual to prove he or she suffered from a condition that required certain accommodations. When an employer faced a lawsuit by an individual under the ADA the initial prong of determining whether the individual was disabled took considerable analysis. Typically, the employer’s primary attention was to focus on determining whether the individual was disabled and demonstrate the individual was not covered under the ADA.
The new regulations provide: “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 the individual meets the definition of disability. The question of whether an individual meets the definition of disability under this part should not demand extensive analysis.” (See Part 1630.1 (c)(4) of the EEOC’s new regulations)
The rationale behind making it easier for an individual to meet the definition of “disability” was because Congress found that persons with many types of impairments - including epilepsy, diabetes, multiple sclerosis, major depression, and bipolar disorder had been unable to bring ADA claims because they were found not to meet the ADA’s definition of “disability.”
The ADAAA and the new regulations state the question of whether an individual is “substantially limited” in a major life activity should not demand extensive analysis. To this end, the new regulations provide a non-exhaustive list of major life activities, which include such activities as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, interacting with others and even include the operation of major bodily functions, such as the function of the immune system, special sense organs, skin, normal cell growth, digestive, and on and on.
In addition to the broader interpretation of “disability,” the new regulations provide a short-term impairment may be a disability, including impairments that may be episodic or in remission. Examples of impairments that may be episodic include epilepsy, hypertension, asthma, diabetes, major depressive disorder, bipolar disorder, and schizophrenia. An impairment such as cancer that is in remission but that may possibly return in a substantially limiting form will also be a disability under the ADAAA and the regulations.
According to the EEOC, the new regulations will require employers and businesses to take certain measures to make sure they are compliant. “We recognize that covered employers may in some cases need to revise internal policies and procedures to reflect the broader definition of disability under the Amendments Act and train personnel to ensure appropriate compliance with the ADAAA and the revised regulations. In addition, there will be costs associated with reviewing and analyzing the final regulations or publications describing their effects and recommended compliance practices.”
The EEOC admits the administrative costs to comply for small business may be particularly difficult. The EEOC is working on providing resources for small business to make the transition a little easier.
However, the EEOC states compliance costs are expected to stem primarily from the costs of providing reasonable accommodation for individuals with substantially limiting impairments that would request and require accommodations.
An economic analysis of what the impact of these compliance costs might be is difficult to forecast. The EEOC estimates on the lower side of $60 million and an upper side cost of $183 million to provide accommodations for new qualified individuals. These numbers are derived from an assumption that 16% of the work force population ranging from 12 million and 38.4 million may qualify for reasonable accommodation.
Moving forward, employers should spend more time focusing on policies to address the expansion of people potentially covered by the new regulations. Key components of their policies need to focus on what the employer does to document the steps it takes to address an individual’s disability and what was done by the employer to engage in the interactive process and provide reasonable accommodations. With the new regulations in place employers should reassess job descriptions, job qualification standards, and reasonable accommodation process, including leave of absence procedures.
If the employer has general questions about the ADAAA and the new regulations, the EEOC provides information and publication resources on its website (www.eeoc.gov/). For specific inquiries and to make sure your business is compliant with the new regulations, businesses should contact an experienced employment law attorney.
For more information about this topic, please contact one of our business attorneys at 619.238.1712
