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The Equal Employment Opportunity Commission (EEOC), on June 17, 2009, released to the Office of Management and Budget (OMB) its proposed regulations to implement and enforce the Americans with Disabilities Act Amendments Act (ADAAA) of 2008.   Although these regulations have not yet been distributed to the public, attorneys for the EEOC have published their review and summarized the contents of the regulations.   Soon the regulations will be distributed for public comments by way of the Notice of Proposed Rule Making (NPRM).  Until these regulations become final, now is the time to study the law and the summary of the proposed regulations to gain a solid education of the new law and to develop a plan to implement your organization’s new policies.  First, it is important to gain an understanding of the changes to the ADA, which are already effective, and the proposed rules.  Second, it is essential to review your policies and training to be in compliance with the new law.  Complying with the ADAAA is critical, especially since the EEOC has publicly stated that it is closely watching employers’ actions, and this is evidenced by the recent increase of disability bias lawsuits filed by the EEOC.  Initially, it must be emphasized that employment decisions must be made without regard or reference to the individual’s impairment or disability.  Ideally, where possible an employer should be able to prove that the decision-maker was not aware of any impairment or disability.  I say “where possible” because some of these cases could involve the interactive process of accommodating, or an analysis of undue hardships or direct threats.

This legislation became effective on January 1, 2009, and significantly changes the law protecting individuals who have impairments and disabilities by expanding the definition of who is disabled and what constitutes a disability.  The purpose of this law is to no longer place the emphasis on whether an individual is disabled, but to focus on whether the employment decision (such as a decision not to hire, not to promote, or to terminate employment), was based on the individual’s impairment or disability and, therefore, was discrimination under the ADA.  Although there is nothing inherently wrong with this law and its amendments protecting disabled individuals, it is likely to result in abuses and baseless claims made by individuals who attempt to misuse a claim of disability rather than accept their lack of qualification or some act of nonfeasance or misfeasance, which really could be the bases for an adverse decision.    For example, the facts can establish that an employer made a legitimate business decision but an employee may argue that he or she simply believes that the decision was based on an impairment or disability; not because there is evidence to support the employee’s perception, and sometimes based on pure speculation.  Now, because of the broadening of the terms and created ambiguities, the employer will more frequently be required to prove its facts with witnesses and documentation before a government agency or in a court proceeding.  This could be an expensive and time-consuming process.  Are you prepared to minimize your risks of  baseless claims and fulfill your obligations under the law?

Key Points
Disability claims processed before January 1, 2009, usually produced a review for summary judgment by challenging the lack severity of an impairment, its episodic nature, remission or mitigation measures.  These arguments have been either eliminated, or virtually eliminated, from the employer’s defenses and claims will now proceed to consideration of why an employer made the employment decision or why an accommodation would be an undue hardship, and will raise issues regarding direct threats.  As stated earlier, employers need to be aware that their decisions will be challenged and they must be prepared to prove a legitimate basis for making those decisions and decisions that have no nexus to a person’s impairments. 

 Some of the major changes under the ADAAA include:

  • Dramatically altering and broadening the definition of protection of individuals because of a disability and individuals who have impairments that are not minor and transitory; the impairment need not be substantial or perceived as substantial; therefore, a mere impairment can be the basis for a claim of discrimination.
  • Significantly expanding the definition of what is a “major life activity,” and which now includes the broad category of “bodily functions.”
  • Eliminating most of the defenses that mitigating measures could result in an employee being “normal” or not disabled; the evaluation of a disability is now based on a review of the unmitigated condition (without medication, assistive devices like hearing aids, etc.)

This legislation overturns a decade of court rulings that narrowed the standards for ADA eligibility, requiring proof that the individual had impairments which were clearly substantial, significant, or severe.  Under the ADAAA, many more individuals will qualify as being “disabled.”  There are three parts to the definition of what is a protected disability, which we refer to as the “three prongs of the ADA.”  The new law retains the original structure of the statutory language and defines disability as:

  1. a physical or mental impairment that substantially limits one or more of the major life activities (prong 1);
  2. a record of such an impairment (prong 2); or
  3. being regarded as having such an impairment (prong 3).

Congress could not agree on new broader terminology for the law so they did not change the terms and, instead, gave a directive that it was expanding the coverage with instructions to the EEOC to set forth regulations to do what Congress could not do.  The ADA amendments also made the following changes:

  • Lowers the standards for “substantially limits;”
  • Establishes a new broad definition of “major life activities;”
  • Broadens the definition of the “regarded as” prong;
  • Eliminates consideration of most mitigating measures; and
  • Includes episodic impairments when active.


Major Life Activity
The definition of major life activity has been expanded under the ADAAA and includes, but is not limited to: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.  The definition also added the category of operation of major bodily functions, which includes, but is not limited to: functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.  It is important to note that the impairment need only limit onemajor life activity and episodic impairments may be a disability.  Again, the new law does not focus on how severe an impairment is but whether a qualified individual has been discriminated against on the basis of his or her impairment or disability, whether reasonable accommodation was required, and whether the individual was qualified for a job. 

“Regarded As” Prong
A major change in the amendments deals with the third prong of defining a disability, namely, the “regarded as” standard.  The new definition of regarded as having an impairment now includes the following principles:

  • no need to demonstrate that an impairment is regarded or perceived to be “substantially limiting” under the “regarded as” prong;
  • the employee need only prove that the employer’s decision was based on the mere impairment;
  • an individual shall not meet the requirement of “being regarded as having such an impairment” if the impairment such individual is regarded as having is in fact a transitory and minor impairment with an actual or expected duration of 6 months or less; 

Therefore, coverage is based on a simple, single impairment and not whether the employer perceives it to be a substantial limitation.  However, impairments that are both “transitory and minor” are excluded from the “regarded as” prong.  This means that transitory and minor impairments, those that last for a short period of time (currently the legislation states six months or less), can be excluded. Reasonable accommodations are not required where there is only a “regarded as” issue; but accommodations are still required for individuals who can meet the stricter standard of a substantial limitation.

The ADAAA will affect employers in a number of ways, including a likely increase in the number of individuals in the workplace who are protected by the federal law.  This will result in an uptick in litigation involving the employer’s “undue hardship” defense, individuals claiming to be “regarded as” disabled, and the first two prongs of the “disability” definition, the broad coverage envisioned by Congress as incorporated in the ADAAA. 

What Should Employers Do?
Again, the ADAAA (especially its broad coverage and protections) removes the focus from a “disability” inquiry, and places it squarely on the interactive process.  Therefore, employers should prepare for these changes.  Specific tasks include:  

  • Reviewing policies and practices governing the ADA’s interactive process, and focusing on reasonable accommodations procedures.  It is important that the employer keep accurate records of its efforts in this interactive process.  Do you have a focus group that can develop new policies and refine the interview process and assess problems that occur (the gatekeepers)?
  • If an employee demonstrates a physical or mental impairment that would limit his or her ability, and if the employee requests an accommodation, initiating an interactive process to accommodate the employee, which includes:
    • Assessing all jobs to determine their essential and nonessential functions.
    • Meeting with the disabled employee to ascertain whether or not he or  she would have difficulty performing one or more of the position’s essential job functions.
    • Reviewing all reasonable accommodations available, including any accommodation suggested by that individual; and
    • Determining which accommodation, if any, is appropriate (i.e., feasible or workable) for the situation and that allows the employee to meet the quantitative and qualitative functions of the job—the essential job functions.

Because of the emphasis being placed on accommodations, some have contended that the ADAAA should be construed as: Assume Disability and Always Attempt to Accommodate!

The EEOC’s Proposed Regulations
The new regulations authorized by the ADAAA will have a greater impact than the ADA and its previous regulations, which did not issue this legislative directive to the EEOC.  The three key provisions of the NPRM, as summarized at the EEOC’s June 17, 2009, meeting include:

  1. Changes to the interpretive guidance concerning the definition of the term “disability,” specifically, the definition of a “major life activity,” “substantially limited” (deleting the significant limitation language), and the “regarded as” prong.
  2. The definition of “disability” should be construed in favor of broad coverage and should not demand extensive analysis.
  3. Numerous examples in the text of the regulations to illustrate how to apply the revised definitions.

The proposed regulations continue the list of the legislative amendments of major life activities with the comment that “those basic activities that most people in the general population can perform with little or no difficulty.”  Several examples proposed by the EEOC that illustrate impairments affecting certain major life activities include kidney disease (affects bladder function); cancer (affects normal cell growth); diabetes (affects the functions of the endocrine system, e.g., production of insulin); and epilepsy (affects neurological function or functions of the brain).   Based on these regulations, employers need to be sensitive to the following questions:   What does the term “most people” mean?  What does “can perform with little or no difficulty” mean?  Who decides whether someone meets the definition of “most people”?  Does that mean that the performance will have to be less than that of the “average” person – that of most people?

If the impairment creates a “substantial limitation,” meaning that the activity can only be performed below the level of “most people,” then prong 1 will apply and, if not, possibly the “regarded as” criteria, prong 3, could apply.  For example, someone diagnosed with Parkinson’s disease could actually be above average, better than most people, in walking, talking, seeing, etc. and, therefore, might not be protected under prong 1 but could be protected under prong 3 and the “regarded as” characterization.  The new amendments do not require that the employer, under prong 3, believe that the individual is “substantially limited” as the law required prior to January 1, 2009.  Further, under the amendments, it is the intent of the EEOC to find and argue that the individual with Parkinson’s has a substantial limitation of the neurological functions or functions of the brain and, therefore, prong 1 could apply.  What has not changed is that the disabled individual has to be qualified to perform the essential functions of the job, with or without accommodations.  The employer defenses of undue hardship and direct threat have not been changed. 

The proposed rules state explicitly that in order to be “substantially limiting,” an impairment need not severely restrict or significantly restrict performance of a major life activity.  We will need to study this characterization and seek clarification of the contours of this analysis before it has a meaningful application.  The EEOC has proposed five Rules of Construction of the new law.

  1. The determination of whether discrimination has occurred should not require a demanding or extensive analysis and words are to be construed broadly to maximize coverage.
  2. Individuals need not prove they can not perform “activities of central importance to daily life;” they need only prove a limitation regarding a single activity or bodily function.
  3. Individuals need only prove limitation of one major life activity.  The EEOC’s example is that an individual who has cancer has abnormal cell growth and it is the lack of normal cell growth which establishes that the person is substantially limited.  The individual does not need to prove that he or she is substantially limited in the major life activity of walking, working, sleeping, etc.
  4. The comparison of an individual’s limitation to that of “most people in the general population” often may be made using a common sense analysis without regard to scientific or medical evidence.  For example, the EEOC provides that someone with epilepsy may be substantially limited in terms of functions of the brain or, during a seizure, limited in major life activities, such as seeing, hearing, speaking, walking or thinking.  However, without medical evidence, how can this be proven, particularly when it involves neurological functions or functions of the brain?  Is it based on the diagnosis alone, or will it have to be quantified, e.g., one seizure, two seizures, etc.?
  5. The Commission states that impairments that lasts for fewer than six months may still be substantially limiting.  The Commission also states that impairments lasting just several months could qualify, even though they may last for fewer than six months.  The EEOC takes this less strict position even though the amendments provide that the impairment “have an actual or expected duration of six months or less.”

The EEOC voted 2 to 1 to adopt the regulation changes.  The regulations are currently with the Office of Management and Budget for review.  Once they are published, you can make remarks during the public comment period.  At the conclusion of the comment period, the regulations will become final.  If you have any questions or comments on the law or regulations, I would like to hear from you.  Likewise, when the proposed regulations become available, I would be happy to send you a copy.  You may contact me by e-mail at or via phone at 800-401-1330.

Thomas P. Krukowski, Esq.
Krukowski & Costello, S.C.
Legislative Partner

Krukowski &
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Margie Harvey

Margie Harvey, SPHR
Miles Kimball Company 
250 City Center
Oshkosh, WI  54906
Ph: 920.232.6409
Fx: 920.231.1247   

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