• EEOC ADAAA NPRM Guarantees Spike in Disability Discrimination Claims and Creates a Backdoor Ergonomics Rule
  • October 14, 2009 | Authors: Lawrence P. Halprin; Mary E. Pivec; Manesh K. Rath; David G. Sarvadi
  • Law Firm: Keller and Heckman LLP - Washington Office
  • On September 23, 2009, the U.S. Equal Employment Opportunity Commission (EEOC), the agency responsible for enforcing Title I of the Americans with Disabilities Act (ADA), issued a Notice of Proposed Rule Making (Proposed Rule) to amend the existing ADA regulations. The stated purpose of the Proposed Rule is to revise the existing ADA regulations to conform to the Americans with Disabilities Amendments Act of 2008 (ADAAA). The Proposed Rule contains a 60-day period for public comment ending November 23, 2009.

    The ADA prohibits discrimination by employers against individuals with disabilities and requires employers to make reasonable accommodations to qualified employees and job applicants with disabilities. An individual with a disability is defined as someone with a mental or physical impairment that substantially limits a major life activity, a person with a record of such a disability, or a person who, despite not having a disability, is regarded as disabled.

    The ADAAA went into effect on January 1, 2009, and reflects the intent of Congress to significantly expand the scope of what is considered a covered "disability" under the ADA by having the courts construe the definition of "disability" "in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA." [1]

    To accomplish these goals, the ADA Amendments Act changed the definitions of "major life activities," "substantially limits" and "regarded as," and the Proposed Rule is designed to incorporate those new definitions.

    Major Life Activities

    The ADAAA and Proposed Rule broaden the definition of "major life activities" by including two non-exclusive lists of major life activities, which we refer to as: (1) Participatory activities; and (2) the operation of major bodily functions.

    The term "participatory activities" would include (1) activities specified in the ADAAA -- caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working; and (2) additional activities proposed for inclusion by the EEOC-- sitting, reaching, and interacting with others.

    The phrase "the operation of major bodily functions" would include: (1) bodily functions specified in the ADAAA-- normal cell growth, and immune system, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions; and (2) additional bodily functions proposed for inclusion by the EEOC – functions of the special sense organs and skin, and genitourinary, cardiovascular, hemic, lymphatic, and musculoskeletal functions.

    Of particular interest to employers should be the inclusion of "musculoskeletal functions." As you may recall, in November of 2000, OSHA published an ergonomics standard in an attempt to address what OSHA described as a common class of work-related injuries referred to "musculoskeletal disorders" (MSDs).[2] In March of 2001, however, Congress passed and President Bush signed a resolution, pursuant to the Congressional Review Act, which rescinded the OSHA ergonomics rule. Reasons relied upon by members of Congress in taking that action included the enormous anticipated costs, the uncertain science relied upon to support the rule, the practical difficulties in interpreting and enforcing the rule, and the fact that it interfered with and superseded policies established by the individual state workers' compensation systems.

    It seems clear that the ADAAA and the Proposed Rule would provide employees with "protections" and accommodation "remedies" that go well beyond the medical removal provisions of the rescinded OSHA ergonomics rule, and it would be irrelevant that the "disability" was not work-related, or was a pre-existing condition at the commencement of employment. The language of the Proposed Rule could be read to suggest that an employee need only present a condition that is recognized by the medical profession as an MSD to establish the existence of a disability for purposes of the ADAAA.

    The Proposed Rule purports to codify "examples of impairments that will consistently meet the definition of a disability" and "examples of impairments that may be disabling for some individuals but not for others." However, the latter category includes the following two examples, which are described as presenting an "individual with a disability":

    (D) Example 4: An individual with a back or leg impairment who is substantially limited compared to most people in the length of time she can stand, the distance she can walk, or the weight she can lift, is an individual with a disability (such as where the individual has a back impairment resulting in a 20-pound lifting restriction that is expected to last for several months or more).

    (F) Example 6: An individual with carpal tunnel syndrome who is substantially limited in performing manual tasks compared to most people, as indicated by the amount of pain experienced when writing or using a computer keyboard or the length of time for which such manual tasks can be performed, is an individual with a disability.

    The Proposed Rule (and the ADAAA) will provide an economic incentive for employers to design jobs to avoid the potential for MSD-based claims and to screen out prospective hires based on their inability to safely perform the essential functions of the job. However, legitimate efforts to screen out prospective hires based on their inability to safely perform the essential functions of the job appear likely to face a greater risk of challenge under the ADA, especially if the following language in the Proposed Rule is adopted by the EEOC:

    (2) Rules of Construction. (i) Consistent with Congress's clearly expressed intent in the ADA Amendments Act that the focus of an ADA case should be on whether discrimination occurred, not on whether an individual meets the definition of ‘‘disability,'' (Section 2(b)(5) (‘‘Findings and Purposes''), the term ‘‘substantially limits,'' including the application of that term to the major life activity of working, shall be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and should not require extensive analysis.

    In proposing this language, the EEOC appears to have gone substantially beyond the cited language of the ADAAA, which reads:

    (5) to convey congressional intent that the standard created by the Supreme Court in the case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) for "substantially limits", and applied by lower courts in numerous decisions, has created an inappropriately high level of limitation necessary to obtain coverage under the ADA, to convey that it is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis;

    In effect, the Proposed Rule would operate as a backdoor ergonomics regulation.

    Substantially Limits

    • Because the term is to be construed as broadly as is permitted by the text of the ADA, the expectation is that the determination of whether someone has a disability generally will not require extensive expert analysis;
    • An individual who demonstrates an impairment that substantially limits a major life activity does not also have to demonstrate a limitation on the ability to perform activities of central importance to daily life;
    • The ameliorative effects of mitigating measures (e.g., pharmaceuticals) other than ordinary eyeglasses or contact lenses intended to fully correct visual acuity or eliminate refractive error are not to be considered in determining whether an impairment is substantially limiting;
    • Comparison of an individual's limitation to that of most people in the general population often may be made using a common-sense analysis and will not require scientific or medical evidence;
    • Impairments that last fewer than six months may still be substantially limiting;
    • Impairments that are vaguely described as episodic or in remission are disabilities if they would be substantially limiting when active.

    Regarded as Having a Disability

    • An employer covered by the ADA who takes some prohibited action against an individual because of an impairment or the symptoms of an impairment regards that individual as having a disability unless the impairment that is the basis for the employer's action is both transitory (lasting or expected to last for six months or less) and minor;
    • Individuals entitled to protection under the ADA solely based on the "regarded as" prong are not entitled to reasonable accommodations, although they are entitled to back pay and compensatory damages based on a perceived disability.

    With the ADA Amendments Act, Congress ensured a sea change in approach under which far more individuals would fall within the ADA's protection. Thus, employers must be aware both that more individuals will be eligible for reasonable accommodations and that more individuals may bring, and succeed in bringing, discrimination claims for perceived failures to comply with the ADAAA. The following represents what we think are ten conclusions to be drawn from the NPRM:

    1. Policies and Procedures – Covered employers should review and update their ADA policies and procedures to ensure that they are consistent with the provisions of the ADAAA. This applies in particular to those employers who may have changed their polices to comply with Supreme Court decisions overturned by the ADAAA and those small employers who may not yet have procedures in place.
    2. Training – Covered employers should train human resources professionals, recruiters, managers and supervisors to understand the requirements of the ADAAA and how it will affect the operations of the workplace.
    3. Across-The-Board Qualification Standards – Across-the-board job qualification standards that render all individuals with certain limitations ineligible for selection for particular positions are per se violations of the Act unless the employer can show that such standards are job-related and consistent with business necessity. Therefore, employers should either have acceptable validation studies justifying such standards or should modify their selection procedures to ensure that otherwise qualified disabled applicants are individually assessed.
    4. Major Life Activity of Working – The determination as to whether an individual with a disability is substantially limited in the major life activity of working is to be made without extensive analysis. Whether an individual with a disability is substantially limited in the major life activity of working is liberally construed under the amended ADA.
    5. Individual Assessments – Employers must continue to conduct "individualized assessments." However, those impairments listed in the Act and Proposed Rule should be found to be substantially limiting each time the analysis is applied to them. Nonetheless, an individualized assessment will still be necessary to determine issues such as whether an accommodation is necessary, whether the individual with a disability is qualified, whether an accommodation would pose an undue hardship on the employer and whether the covered individual would pose a direct threat.
    6. Ameliorative Effects – In determining whether an individual has a disability and is, therefore, entitled to a reasonable accommodation, the employer must not take into account the ameliorative effects of any mitigating measures (e.g., medications, prosthetics, wheelchairs), except for corrective glasses or contact lenses if they are intended to fully rectify the vision impairment. An individual who has never experienced symptoms associated with the impairment may still be an individual with a disability if there is evidence that, without the mitigating measure, the impairment would be substantially limiting. This may have an impact upon an employer's ability to manage conditions identified as MSDs (such as tendonitis or carpel tunnel) where a medical professional determines certain tasks involving repetitive motions or other "risk factors" would prevent recovery or aggravate those conditions.
    7. "Regarded as" – Under the Amendments Act an individual is "regarded as" having a disability if he is subjected to a prohibited action based on an actual or perceived impairment, whether or not the perceived impairment limits or is perceived to limit a major life activity.
    8. Claims of No Disability – The Proposed Rule makes clear that individuals without a disability may not bring an action claiming that they were subject to discrimination because of a lack of disability. Nor may they claim that they were subject to discrimination when an individual with a disability was granted an accommodation that was denied to the individual without a disability.
    9. Record Keeping – Covered employers should ensure that they have an adequate system of record keeping in place to document each and every employment decision that is made in case the employer is required to defend against an ADA discrimination claim.
    10. State Limitations On Access To Occupations – An employer will not be exempted from complying with the ADA's requirements by arguing that State or Local laws impose limitations on the ability of qualified individuals with disabilities to practice any occupation.

    Parties interested in more information or assistance with filing comments should consult our offices at [email protected] Otherwise, comments can be sent in written form to Stephen Llewellyn, Executive Officer, Executive Secretariat, Equal Employment Opportunity Commission, 131 M Street, NE, Suite 4NW08R, Room 6NE03F, Washington, D.C. 20507. Electronic submissions should be sent to http://www.regulations.gov. Comments that are six pages or less in length can also be faxed to (202) 663-4114. The deadline for submissions is November 23, 2009.

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    [1] EEOC Press Release, Commission Approves Proposed ADA Regulations for Public Comment, Sept. 16, 2009, http://www.eeoc.gov/press/9-16-09f.html.

    [2] 64 Fed. Reg. 65768 Proposed Rule Ergonomics Program, November 23, 1999, available online at: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=federal_register&p_id=16305; See also OSHA's Ergonomics Safety and Health Topics Page available online at: http://www.osha.gov/SLTC/ergonomics/index.html.