The Final Regulations under the Americans with Disabilities Amendment Act (“ADAAA”) were released today for publication tomorrow in the Federal Register. These Regulations, which will be effective sixty days after publication, are noteworthy not only because of the regulatory guidance they provide from the Equal Employment Opportunity Commission (“EEOC”) as to the broadened protections enacted under the ADAAA, but also because these new regulations were approved in less than 90 days, the usual regulatory review period. This reflects the Obama administration’s continued commitment to increased civil rights enforcement.
As expected, the regulations confirm the shift in the landscape in terms of the “focus of an ADA case.” Before the ADAAA, in most situations or lawsuits, the focus had been on whether an individual was substantially limited in a major life activity and thus disabled under the ADA. Now, with an expanded definition of substantially limited in a major life activity, the focus will be on whether discrimination occurred, with significant emphasis on the reasonable accommodation provisions of the ADA.
The Regulations include a list of medical conditions that “virtually always” will meet the definition of disability. Such conditions include autism, cancer, cerebal palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia. In addition to creating certain per se disabilities, this change also makes it easier for groups of individuals to bring claims under the ADA as part of a class action or pattern or practice claim. Previously, most courts asked to treat an ADA claim as a class action concluded that such claims are highly individualized, both in terms of the factual and legal circumstances surrounding such claims, as well as the defenses asserted to such claims. Now, however, all who work for an employer and suffer from the same condition, e.g. cancer, can claim that they as a group have experienced discrimination.
Another major ramification of the Regulations is that they foreclose the argument than an impairment is not substantially limiting because it is “temporary.” The Regulations reject any durational minimum and state that “[t]he effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of this section.” This, too, will significantly expand the number of individuals who will be considered disabled and protected by the ADA.
The ADAAA and new Regulations also greatly increase coverage for individuals who are “regarded as disabled.” The ADAAA prohibits discrimination based on an employer’s alleged perception of a mental or physical impairment, even if that impairment is not perceived as an actual disability. For example, if an employee has a minor lifting restriction which does not rise to the level of an actual disability, it could still nonetheless be the basis for a “regarded as disabled” claim. Fortunately for employers, however, the Regulations (like the ADAAA) do not require employers to reasonably accommodate those individuals who are “regarded as” being disabled.
Besides issuing and enforcing its new Regulations, the EEOC is also cracking down on employers who have maximum leave time policies. For example, some employer policies state that once an employee has been off for six months, he or she is automatically terminated. The EEOC has taken the position that this per se rule violates the ADA requirement of an individualized, case-by-case assessment as to whether a reasonable accommodation is available. The EEOC may now be able to bring a pattern or practice claim, or employees may now successfully assert a putative class action claim, alleging in certain instances that this per se rule or policy impacts all disabled individuals, regardless of the nature, duration, or other individualized circumstances surrounding their disabilities.
In sum, prior case law and guidance under the ADA is largely contrary to the ADAAA and new Regulations. It is expected that the EEOC will use the regulations to assist in “pushing-the envelope” of its litigation theories in prosecuting ADA litigation. As a result, employers should focus on the issue of reasonable accommodation, and whether an individual with a physical or mental condition or impairment is otherwise qualified to perform essential job functions, with or without a reasonable accommodation. This will require employers to reevaluate policies and procedures related to reasonable accommodation, job descriptions and job qualification standards. It is a brand new world in terms of disability discrimination and compliance with the ADA.
For further details and analysis regarding the new Regulations, please go to www.seyfarth.com, Publications, and view Seyfarth Shaw’s Management Alert.