March 28, 2011

EEOC FINALIZES ADA REGULATIONS IN LIGHT OF THE ADA AMENDMENTS ACT OF 2008

by Art Gutman Ph.D., Professor, Florida Institute of Technology

The EEOC published the regulations for the ADA in light of the ADAAA on March 25, 2011 with an effective date of two months thereafter. Along with the new regulations, the EEOC published a set of 33 questions and answers relating to these new regulations, a set of 28 questions and answers relating to small businesses, and a fact sheet associated with the new regulations. The final document published in the Federal Register contains an extensive introduction in which the EEOC overviews key issues within the ADAAA, information relating to queries submitted during the comment period, and other information such as the manner in which it estimated the number of disabled people in various categories.

The major issues discussed in the regulations related to the definition of being disabled, which the EEOC notes will be interpreted “broadly.” The major definition addressed is that of a current physical or mental impairment that substantially limits a major life activity. The ADA has two other definitions, namely a history of physical or mental impairment that substantially limits a major life activity, and being falsely regarding as being disabled. It is now easier to prove that an individual is disabled within the meaning of the ADA, particularly with respect to current impairment, but also with respect to being falsely regarded as being disabled. To accomplish this goal, the EEOC notes the following.

First, the EEOC deletes from its prior regulations, the terms “condition, manner, or duration” for being “severely” or significantly restricted with respect to a major life activity. Previously, the EEOC considered a physical or mental impairment as being non-severe if there was the prospect of recovery. Thus, if an individual had surgery, and the period of recovery was even lengthy (e.g., a year or more), the impairment was nevertheless considered transitory. Heading the directive of Congress, impairment is temporary if the expected period of recovery less than 6 months. Therefore, expected periods of recovery that are longer than 6 months are no longer considered transitory.

Second, the EEOC provides two “non-exhaustive” lists of major life activities. Critically, including in the first list are “caring for oneself” and “manual tasks”, and including on the second list is “working.” All three of these were threatened in the Supreme Court’s ruling in Toyota v. Williams (2002), which the ADAAA reverses.

Third, in conjunction with the ADAAA’s partial or total reversal of key rulings in three 1999 cases (Sutton v. United Airlines, Albertson v. Kirkingburg & Murphy v. UPS), the EEOC emphasizes that the severity test shall be conducted in the “non-mitigated” state other than “ordinary eyeglasses.” That means impairments such as diabetes, hypertension and depression must be assessed without considering the corrective effects of medication or the ability for one to make up for impairment by self-mitigating measures (e.g., using monocular cues for depth perception if one is blind in one eye).

Fourth, the EEOC endorses the ADAAA’s definition of an “episodic” illness. For example, if an individual has Tuberculosis, and the disease is in remission, the severity test must be conducted assuming what the status is when the disease is active.

Fifth, the EEOC notes that the test for “regarded” as being disabled is modified to exclude the provision that the employer also perceived a “substantial limitation.” Thus, just believing there is a physical or mental impairment grants a free pass to being defined as being disabled, unless the impairment itself is both “transitory and minor.” However, individuals falsely regarded as being disabled are not entitled to reasonable accommodations.

Finally, although ordinary eyeglasses are not among the covered mitigating measures, the EEOC qualifies that “qualification standards, employment tests, or other selection criteria based on an individual’s uncorrected vision shall not be used unless shown to be job related for the position in question and consistent with business necessity.” This regulation is in reference to the plaintiffs in Sutton v. UAL, who were both legally blind, but who had 20-20 vision with corrective lenses. Although their visual status must be evaluated with the corrective lenses, the airline in that case used a criterion for uncorrected vision that was far more restrictive than that established by the Federal Aviation Administration. Thus, an employer who requires more than what is required by the job, or more than what is protected by federal agency regulation, risks regarding the applicant or employee as being disabled.

The foregoing summary is not exhaustive, but merely highlights major features of the new regulation. It is recommended that readers also examine the two sets of Q&As as well as the fact sheet. Also, readers may be interested in a webinar entitled “Disabilities – What’s an Employer to do?” conducted by the author for DCI on November 16, 2010 in which all of the aforementioned issues (and more) are discussed.

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