New EEOC Americans with Disabilities Act, Amended regulations

Legal Issues

New EEOC Americans with Disabilities Act, Amended regulations

On March 15, 2011 the Equal Employment Opportunity Commission promulgated/finalized regulations to implement the Americans with Disabilities Act amendments of September 25, 2008. I have discussed these amendments in past columns. Now we know more about how they will be implemented.

1. The final regulations define disability using a three-pronged approach:

  • a physical or mental impairment that substantially limits one or more major life activities (an “actual disability”), or
  • a record of a physical or mental impairment that substantially limited a major life activity, or
  • when a covered entity takes an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory and minor

2. The most important issue for people with diabetes is that diabetes is a medical condition that should be easily determined to be a disability. The regulations provide that diabetes will virtually always be considered a disability. Other presumptive disabilities include epilepsy, cancer, HIV infection, and bipolar disorder.

3. The term “substantially limits” which is used to define effects on major life activities is to be construed broadly and encompasses more disabilities than courts previously allowed under the original ADA. To be considered “substantially limiting.” an impairment does not need to “severely” or “significantly” restrict a major life activity.

4. With the exception of “ordinary” eye glasses, impairment of a major life activity shall be determined without consideration of ameliorative effects of mitigating measures such as medical treatments and hearing aids. This means that when people with diabetes are considering the effects of their diabetes on major life activities, they should presume no medication, not even insulin. This often will lead to greater effects on life activities than people actually experience. This may also dictate the need for more accommodations. Also, any negative effects of medical treatments should be considered in selecting appropriate accommodation.

5.The term “condition, manner, or duration” remains in the definition of disability. While consideration of these factors may be unnecessary to determine whether an impairment substantially limits a major life activity, they may be relevant in certain cases.

6. The new definitions of covered disabilities are not retroactive. However, if you continue to have a condition which is a covered disability under the new regulations, you can claim the disability today.

7. Major life activities include the operation of major bodily functions, including functions of the immune system, special sense organs and skin, normal cell growth, digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. Major bodily functions include the operation of individual organs within a body system ( e.g., the operation of the kidney, liver, or pancreas).

8. An impairment that is episodic or in remission may meet the definition of disability if it would substantially limit a major life activity when active. Diabetes is listed in an appendix that provides examples of impairments that may be episodic. Also included in this appendix are epilepsy, hypertension, asthma, major depressive disorder, bipolar disorder, and schizophrenia. An impairment such as cancer that is in remission but that may possibly return in a substantially limiting form will also be a disability.

In summary, these regulations make it much easier for a person with diabetes to claim that they have a actual disability under the ADAA and obtain accommodations. The citation for these regulations is 76 FR 16978 (March 15, 2011).