Proposed Ada Regs Expand Coverage

New disability regulations issued by the EEOC make it clear: disability law has changed.

On Jan. 1, 2009, the Americans with Disabilities Amendments Act went into effect, broadening the interpretation of “disability” and overturning Supreme Court precedent narrowing the ADA.

The intent of the ADA Amendments Act was to significantly lower the standard for an employee to establish they had a disability covered under the ADA.

The proposed regulations provide guidance on several major changes in the ADA Amendments Act:

RegardedAs Claims

The regulations make clear that the evidentiary standard for regarded as claims has been substantially lowered. Previously, a plaintiff had to show the employer regarded him or her as either unable to perform or severely restricted in performing some major life activity because of a mistaken belief about the person’s impairment. The proposed regulations establish that a plaintiff must only show the employer believed the individual could not perform the job.

The regulations show this by an example of an employer refusing to hire an individual with a facial tic, believing the person had a disability like Tourette’s Syndrome. Under the proposed test, if a person has a nervous tic and doesn’t even know the cause and the employer takes action on that tic alone, the decision not to hire is prohibited by ADA. Most new ADA lawsuits will include a regardedas claim because the proof required is very low.

Mitigating Measures

Under current law, if an employee had an impairment that could be mitigated (a diabetic who took insulin, or a person who wore glasses), the person was not impaired. Now, mitigating measures will not be considered. The regulations make clear that conditions can be impairments even if there are mitigating measures. The regulations also provide that episodic impairments – like epilepsy and impairments in remission like cancer – are disabilities if they are substantially limiting when they occur.

Per Se Disabilities

The proposed regulations say some medical conditions are per se disabilities, like epilepsy, multiple sclerosis, AIDS/HIV, diabetes and bipolar disorder. This means employers almost certainly have an obligation to enter into negotiations about reasonable accommodations for people with thee conditions.

Major Life Activities

Before the new law, there was a split in the courts about whether work was a major life activity. The EEOC makes it clear that work is a major life activity. The proposed regulations focus on whether a person is substantially limited in the major life activity of working. This means looking at the person’s current job or the job for which he is applying, not at whether that person is unable to perform a broad class of jobs because of an impairment.

Practically speaking, many more medical conditions will likely cause a finding that the individual is substantially limited in the major life activity of working, expanding the employer obligation to work with the employee to provide reasonable accommodation.

The proposed regulations also list three other major life activities not in the ADA Amendments Act: reaching, sitting and interacting with others. New major bodily functions include cardiovascular and lymphatic systems and functions of the skin and special sense organs (relating to balance and equilibrium).

Focus of litigation will shift

Because the new Act and proposed regulations emphasize a broad interpretation of disability, the focus of cases will shift to whether an employer complied with ADA requirements. Employers will face litigation over the scope of their obligation to provide reasonable accommodations and whether or not an employee poses a significant risk of substantial harm to herself or others because of a disability.

Final regulations will be issued after a 60day comment period.