LET’S MAKE IT EASIER: ADA Amendments Act and Regulations

Recently, while preparing materials for a presentation on the ADA Amendments Act and the newly released regulations, I told a colleague that I could merely walk in the room, say “everyone is disabled” and then walk out. That would be the extent of my presentation because as the regulations clearly state: The purpose of the amendments to the Americans with Disabilities Act was to make it easier for employees to come within the Act’s protection. Although the regulations retain the basic definition of disability, it substantially expands the terms necessary to making a determination of whether a disability exists. The final regulations provided nine rules of construction to apply in determining whether a substantial limitation exists:

• Substantially limits” is to be construed broadly, to the maximum extent allowable under the law.
• “Substantially limits” does not need to prevent or severely or significantly restrict a major life activity; rather, an impairment is a disability if it substantially limits the ability of an individual to perform major life activities as compared to “most people” in the general population.
• The determination of whether an impairment substantially limits a major life activity requires individualized assessment; however, such analysis need not and, in fact, should not be extensive.
• The individualized assessment to determine if someone is substantially limited should require a degree of functional limitation that is “lower” than the standard prior to the enactment of the ADAAA.
• The analysis of whether an individual’s performance of a major life activity as compared to most people in the general population usually will not require scientific, medical, or statistical analysis.
• With the exception of ordinary eyeglasses or contact lenses, the determination of whether an impairment “substantially limits” a major life activity should be made without regard to the ameliorative effects of mitigating measures, such as medication and assistive devices.
• An impairment that is episodic or in remission meets the definition of disability if it would substantially limit a major life activity when active.
• An impairment that substantially limits one major life activity need not substantially limit other major life activities in order to be considered substantially limiting.
• The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting. Therefore, even conditions of short duration (e.g., a few months) can meet this definition.

In addition to the expansion of “substantially limits” the regulations also expanded the term “major life activity” to include activities such as interacting with others. The ADA statutory amendments previously added “major bodily functions” to the list and the regulations address it further. “Regarded as” has also been broadened and requires no showing of substantial limitation by the employee. The final regulations and Interpretive Guidance make clear that there is no duty to accommodate based on an individual being “regarded as” an individual with a disability. However, the “regarded as” prong is likely to become the main theory for employees as the regulations emphasize that it is the primary method for bringing a claim when an accommodation request is not at issue.

So what does this mean for employers? Basically what I said at the beginning of this article: everyone is disabled. An employer should no longer focus on whether a disability exists because it likely does. The focus should now be on whether the disability needs to be reasonably accommodated and/or whether an employment action is being administered fairly. Employers should review their processes and ensure that they understand how to engage in the interactive process. An employer should have a policy or procedure in place to notify employees of how to make accommodation requests. Human resource professionals and line managers should be trained to recognize accommodation requests and how to respond.

For additional information on this Newsletter article, please contact:

Latosha Dexter

(901)333-8101

ldexter@raineykizer.com

Source: Rainey, Kizer, Reviere & Bell

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Tags: municipal law alert - august 2011, newsletter