• Who's "Disabled?" EEOC Expands the Definition
  • August 30, 2011 | Author: Jennifer E. Duggan
  • Law Firm: Porter Scott A Professional Corporation - Sacramento Office
  • On May 24, 2011, new regulations became effective which broadened the scope of when an employee qualifies as “disabled.” According to the Equal Employment Opportunity Commission (“EEOC”), “the effect of these changes is to make it easier for an individual seeking protection under the [Americans with Disabilities Act (ADA)] to establish that he or she has a disability within the meaning of the ADA.” Businesses with 15 or more employees must comply.

    The new regulations keep the ADA’s definition of “disability” as a physical or mental impairment that substantially limits one or more major life activities. (42 U.S.C. § 12102(2)(a).) However, the regulations made two significant changes which expanded the term “disability.” First, the regulations adopted certain rules of construction which determine whether an individual is substantially limited in performing a major life activity. These rules provide:

    The term “substantially limits” now requires a lower degree of functional limitation than the standard previously applied by the courts. Impairments no longer have to significantly restrict a major life activity such as sleeping or concentrating on a task to be deemed a disability. Additionally, short-term impairments may now qualify as a disability if they substantially limit major life activities. Not every impairment will meet the requirement, however, according to the EEOC, “the term ‘substantially limits’ is to be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA.”

    With one exception for ordinary eyeglasses or contact lenses, the determination of whether an impairment substantially limits a major life activity will be made without regard to the ameliorative effects of mitigating measures, such as medication or hearing aids. For example, the determination of whether a person’s poor hearing substantially limits a major life activity will be considered without taking into account whether that person has a hearing aid. In addition, an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

    Under these new regulations, employees may be able to assert disability-based claims arising from conditions which were previously denied legal protection, such as diabetes, epilepsy, obsessive-compulsive disorder, HIV infection, bipolar disorder, and cancer — even if in remission. Also, establishing coverage under the “regarded as” portion of the definition of “disability” has been made easier as well. The ADA protects individuals who have a physical or mental impairment, but it also provides protection from discrimination to individuals who are regarded as having an impairment. The EEOC states that under the courts’ current interpretation, it has become too difficult for individuals to establish coverage under the “regarded as” prong. As such, the new regulations establish coverage based on how a person has been treated because of a physical or mental impairment, rather than what an employer may have believed about the nature of the person’s impairment.

    What should employers remember about these new regulations? Employers should be aware that disability-based claims are anticipated to rise and those claims and lawsuits will become more difficult to defend at the pleading stage. Because claims will be more difficult to defend at the outset, employers can expect more discovery and litigation.