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Posted: May 26, 2011

What’s your disability?

New regs greatly expand ADA coverage

John Husband and Bradford Williams

New regulations that went into effect this week greatly broaden the scope of coverage under the Americans with Disabilities Act. Although the Equal Employment Opportunity Commission claims otherwise, everyone may now effectively be "disabled" within the Act's meaning. To avoid liability, employers must carefully respond to all requests for accommodation.

ADA Amendments Act and New Regulations

In 2008, Congress amended the ADA to provide greater coverage for individuals not then considered "disabled" under the Act. Specifically, the ADA Amendments Act rejected several U.S. Supreme Court decisions and interpretive rules that had read the statutory definition of "disability" very narrowly. Although the Amendments Act and new regulations retain the ADA's original, tripartite definition of "disability," each prong of this definition is now construed very liberally to maximize employee coverage.

The "Actual Disability" Definition

Both the Amendments Act and new regulations-like the original ADA before them-provide that an individual is actually "disabled" if he is substantially limited in a major life activity. Nonetheless, individuals need no longer prove that they are substantial limited in an activity "of central importance to daily life." Instead, individuals need merely show that they are substantially limited in such traditional activities as lifting, learning, or concentrating, or in the operation of "major bodily functions," such as neurological, brain, or digestive functions. The operations of individual organs also qualify as "major bodily functions" under the new regulations.

The new regulations further list various "rules of construction" which, taken together, effectively mandate that all but the most inconsequential of impairments will be considered "disabilities." For instance, the ameliorative effects of mitigating measures (such as medication) may no longer be considered in determining whether an individual is "disabled." Similarly, certain impairments-such as cancer, diabetes, and major depression-will "virtually always" satisfy the definition of "disability" according to the new regulations.

The "Record of" Definition

The Amendments Act and new regulations-like the original ADA-also provide than an individual enjoys ADA coverage if he has a "record of" a substantially limiting impairment. The regulations again clarify that liberal rules of construction must be used in making this assessment. Furthermore, the regulations provide that individuals protected under the "regarded as" prong are protected against disability discrimination in all its forms, and may be entitled to such reasonable accommodation as schedule changes or leave to obtain follow-up care or "monitoring" of their former impairments.

The "Regarded As" Definition

Finally, both the Amendments Act and new regulations-like the original ADA-provide that an individual enjoys coverage if he is "regarded as" having an impairment. Significantly, the new regulations repeatedly stress that most individuals may easily establish so-called "regarded as" coverage by simply showing that employers took prohibited actions against them because of their actual or perceived impairments. By contrast, individuals need no longer prove that employers viewed their actual or perceived impairments as "substantially limiting."

As the EEOC notes in new interpretive guidance, individuals seeking "regarded as" coverage need not satisfy any functional tests. Limited defenses-including proof that the actual or perceived impairment was objectively "transitory and minor"-may absolve employers from liability. Nonetheless, "regarded as" claims are now poised to become the claims of choice for many employees who suffer adverse employment actions, and who exhibit any type of plausible impairment.

Limiting Liability in a World of Limitless Disability

To limit liability, employers must first acknowledge that they will rarely prevail in traditional fights over whether individuals are actually "disabled." Instead, employers must carefully engage in the interactive process with all individuals claiming to have impairments and requesting reasonable accommodation. Employers must also refrain from adverse employment actions against individuals with real or perceived impairments, except when such actions are fully defensible, and the need to take the actions is well-documented. While liability may not truly be limitless under the ADA Amendments Act and new regulations, avoiding a truly "disabling" judgment now requires more vigilance and attention than ever before.
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John M. Husband and Bradford J. Williams are members of Holland & Hart, LLP's Labor and Employment Practice Group. Both have extensive experience counseling employers in labor and employment matters, and in defending employers in employment discrimination lawsuits. They may be reached at jhusband@hollandhart.com, bjwilliams@hollandhart.com, or (303) 295-8000.

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