The Americans with Disabilities Act (ADA) underwent substantial revisions when the ADA Amendments Act of 2008 (ADAAA) took effect on January 1, 2009. The stated purpose of the ADAAA was to redress court decisions that “created an inappropriately high level of limitation necessary to obtain coverage under the ADA.” The clear upshot of the ADAAA was to substantially broaden the scope of disabilities covered under the ADA, making more individuals eligible for the provision of employer-provided reasonable accommodations.
On September 23, 2009, the Equal Employment Opportunity Commission (EEOC) issued a Notice of Proposed Rule Making (NPRM), which issued proposed revisions to the ADA regulations and accompanying interpretive guidance to bring them into compliance with the ADAAA. These regulations and guidelines will be finalized shortly. Senior living communities, which rely heavily on able staff to care for residents, should be aware of the ADAAA and NPRM developments.
Defining Disability
The revised legislation provides that, in general, the definition of “disability” should be broadened to the maximum extent permitted by the terms of the ADA. The ADA defines disability as: (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of such an impairment; or (3) being regarded as having such an impairment. The Act maintains this definition of disability, but clarifies each prong of the definition and regards each as more expansive.
The definition of “major life activity” is expanded under the Act and NPRM. The Act rejects Supreme Court precedent holding that major life activities are limited to those of “central importance to a person’s life.” As explained in the NPRM, major life activities are to be construed as basic activities, including major bodily functions, that most people in the general population can perform with little or no difficulty. The Act sets forth a specific non-exhaustive list of major life activities, including caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. The NPRM adds three additional major life activities not included in the text of the Act: reaching, interacting with others, and sitting.
The ADAAA also includes a non-exhaustive list of major bodily functions, including normal cell growth and regular functions of the immune, endocrine, digestive, neurological, circulatory, respiratory, and reproductive systems. The NPRM also adds special sense organs and skin, genitourinary, cardiovascular, hemic, lymphatic, and musculoskeletal functions to the list. The ADAAA makes clear that an impairment need only substantially limit one major life activity to be considered a disability.
Interpreting Key Phrases
The Act rejects the Supreme Court’s holding in Toyota Motor Mfg., Kentucky Inc. v. Williams, which held that the phrase “substantially limits” should be strictly construed, and that a disability must severely restrict or prevent the individual from doing activities that are of central importance to most people’s lives. The Act also rejects the regulations promulgated by the EEOC that define “substantially limits” as “significantly restricted.” Specifically, the ADAAA says the EEOC’s definition of “substantially limits” is “inconsistent with congressional intent, by expressing too high a standard.”
In response to this, the NPRM removes the factors that are currently considered in determining whether an impairment is “substantially limiting”- specifically, the nature, severity, and duration of the impairment and the permanent or long-term impact of the condition. Instead, the NPRM proposes several rules of construction, including: The focus should be on whether discrimination occurred rather than whether the individual meets the definition of disability; the individual does not have to demonstrate the limitation is in an activity of “central importance to daily life”; and the term “substantially limits” should not require extensive analysis.
The NPRM provides that an impairment is a disability if it substantially limits an individual’s ability to perform a major life activity as compared to “most people in the general population,” as opposed to the prior standard, which focused on “an average person in the general population.”
And finally, under the ADAAA and echoed by the NPRM, a determination of whether an individual is substantially limited in a major life activity shall be made without regard to mitigating measures. With the exception of common eyeglasses and contact lenses, the ADAAA prohibits the consideration of measures such as medication, medical supplies, equipment, prosthetic devices, hearing aids, mobility devices, and others when determining whether an employee is substantially limited in a major life activity.
Adapting New Standards
The NPRM proposes that to be substantially limited in the major life activity of working, an individual must be unable to perform a type of work, taking into account the nature of the individual’s work and job-related requirements. This new standard replaces the prior standard of needing to determine whether an individual is substantially limited from working a “class” or “broad range” of jobs.
The NPRM reiterates the text of the ADAAA by providing that impairments that are episodic (e.g., epilepsy) or in remission (e.g., cancer) would constitute disabilities if they would be substantially limiting “when active.”
The ADAAA says that the expansive definition of disability will be categorical for certain types of conditions-in contrast with the prior view that all impairments were subject to individualized assessments as to whether they were disabling. The ADAAA provides that certain impairments (e.g., autism, cancer, cerebral palsy, diabetes) would consistently meet the definition of disability. For specified conditions, the individualized assessment should be conducted “quickly and easily.” The NPRM adds a list of impairments that may be disabling for some individuals (e.g., asthma, high blood pressure, learning disabilities). With respect to these types of conditions, the NPRM proposes that the individualized analysis should be slightly more comprehensive.
Interpreting Repercussions
The number of individuals covered under the ADA will increase as a result of the ADAAA and NPRM. Employers should expect to receive a greater number of requests for accommodations and be mindful of the new and broadened scope of the ADA’s coverage. Employers should also review their guidelines for determining disability and, in a close case, contact counsel to review how the Act’s expansion may impact the determination of a disability that will require reasonable accommodation.
While many state/local laws, such as in New York, New Jersey, and California, have long defined disability more broadly-thereby including many individuals who did not qualify for protection under the ADA-in certain respects, the Act’s expanded “regarded as” standard may be broader than even the most employee-friendly state or local law.
Key Points for Employers
The ADA Amendments Act of 2008 (ADAAA) and accompanying Notice of Proposed Rule Making (NPRM) include exhaustive details about how disabilities are defined, and senior living providers should become familiar with all the changes affecting their business. However, here are some quick points to keep in mind. Under the ADAAA and NPRM:
o An individual satisfies the definition of disability if he establishes that he has been subjected to prohibited action based on an actual or perceived physical or mental impairment.
o An individual no longer needs to establish that the impairment substantially limits a major life activity. However, employers are not required to make reasonable accommodations in all cases.
o A “transitory and minor impairment” (i.e., an impairment with an actual or expected duration of six months or less) does not satisfy the “regarded as” prong of the definition of disability.