Final ADA regulations defining “disability” released

More than two years after amendments to the Americans with Disabilities Act (ADA) expanded the definition of “disability,” the U.S. Equal Employment Opportunity Commission (EEOC) has finally updated its regulations to give us further guidance. The rules don’t contain any major surprises, but will frustrate anyone looking for clear definitions. Bottom line: It is very easy for someone to show that they have a disability under these rules, so as an employer, you should focus on ensuring that you don’t discriminate on the basis of a disability, and that you provide reasonable accommodation when needed.

The ADA has always stated that a physical or mental impairment that substantially limits a major life activity is a disability. But how do you define “substantially limits” under the employee-friendly ADA Amendments Act that took effect on January 1, 2009? Congress merely said they disapproved of the prior strict interpretations by the Supreme Court, and left it up to the EEOC to provide guidance.

The EEOC lists nine principles for evaluating “substantially limits,” but doesn’t come out and give an actual definition. Instead, the agency reminds us that it is a broad standard, and should be construed in favor of expansive coverage. It is an individual assessment, and it is based on a comparison to most people in the general population. Unlike earlier interpretations under the original ADA, “substantially limits” doesn’t mean that the impairment prevents or significantly restricts an individual from performing a major life activity. Also, there isn’t any minimum duration that an impairment must last in order to be considered disabling. The EEOC gives an example of a disability where an individual has a back condition with a lifting restriction of 20 pounds that continues for “several months” (76 Fed Reg 16978, Mar. 25, 2011).

If an applicant or employee isn’t seeking an accommodation, but is simply complaining of being discriminated against on the basis of a disability, they only have to show that you “regarded” them as having an impairment (although impairments that are both transitory and minor aren’t protected under the “regarded as” category). This means that they don’t need to prove they are substantially limited in a major life activity. If they suffer an unfavorable employment action because of an impairment (e.g., rejection from a production job due to carpal tunnel syndrome or skin allergies), then you have violated the ADA unless you have a valid defense.

Your defense would have to be that the impairment was both transitory and minor, or that the individual posed a direct threat to health or safety, or that a proposed accommodation would cause an undue hardship to the company, or that your employment standard was job-related and consistent with business necessity.

Tips: Be very cautious when disqualifying an individual from a job on the basis of any type of medical condition. For more information on the EEOC’s new regulations, see our Legal Guides, “ADA: Definition of Disability” (3212) and “ADA: Regarded As a Disability” (2540).