The ADAAA went into effect on January 1, 2009. This law overhauled the ADA, and instructed courts and employers to broadly interpret the meaning of “disability” under the ADA. The ADAA charged the EEOC with drafting regulations and interpretive guidance concerning the definition of “disability”, the definition of “major life activities”, the definition of “substantially limits” and other provisions of the ADA.
On June 17, 2009, the EEOC voted to approve the Notice of Proposed Rule Making (NPRM). The NPRM is not available for public review until approved by various federal agencies. However, the comments of Assistant Legal Counsel for the EEOC provide significant insight on the NPRM, and how the EEOC will likely address and interpret the ADA.
According to the NPRM, the EEOC adds 3 additional activities to the list of “major life activities”. These activities are: bending, reading and communicating. The ADAA added major bodily functions as a subset of major life activities. Then NPRM adds 3 additional functions to the list of “major bodily functions”. These functions are functions of the hemic, lymphatic, and musculoskeletal systems.
One of the biggest changes proposed under the NPRM is how major life activities are interpreted and examined as compared to other individuals in the population. Previously, courts interpreting the ADA examined the ability of the individual in question as compared to individuals within the general demographic population. Then NPRM instructs employers and courts to compare the limitations of an impairment to basic activities that most people in the general population can perform with little or no difficulty. Thus, the more restrictive comparison is no longer a valid method for determining whether or not an impairment substantially limits a major life activity.
Perhaps the biggest task the EEOC faced under the ADAAA was to define “substantially limits.” Congress rejected the Supreme Court’s interpretation of “substantially limits” to mean “severely restricts” and also rejected the EEOC’s Title I regulation that defined “substantially limits” as “significantly restricted”. Rather than defining “substantially limits”, the NPRM issues 5 rules of construction to determine whether or not the impairment “substantially limits” a major life activity. The NPRM also states that temporary, non-chronic of a short duration with little or no residual effect, such as a cold or a sprained joint, usually will not substantially limit a major life activity.
The 5 rule of construction interpreting “substantially limits” are as follows:
- The focus in ADA cases in on whether discrimination occurred, not on whether someone meets the definition of “disability”; the definition of “substantially limits” should be construed broadly; and the determination of whether someone has a disability should, in most cases, not demand extensive analysis;
- An individual with an impairment that substantially limits a major life activity does not need to demonstrate a limitation in the ability to perform “activities of essential importance to daily life.”;
- An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered substantially limiting. For example, someone with cancer whose normal cell growth is substantially limited need not also show that he or she is substantially limited in any other major life activity;
- When interpreting substantially limits under the ADA, the comparison of an individual’s limitation to that of most people in the general population should be made using a common-sense approach without resorting to scientific or medical evidence in most cases.
- Impairments that last for les than 6 months may still be substantially limiting.
The NPRM also examples of mitigating measures that will not be considered when determining whether or not the individual is disabled under the ADA. In addition, the NPRM adds “surgical interventions” to the list of examples of mitigating measures.
The NPRM also includes examples of impairments that are “episodic or in remission” and reiterates that these impairments are disabilities if they would be substantially limiting when active. The NPRM also includes examples of impairments that substantially limit major life activities such as autism, cancer, diabetes, epilepsy and others. The NPRM also includes a list of impairments that may substantially limit a major life activity. Impairments that may impair a major life activity include, but are not limited to, asthma, high blood pressure, coronary artery disease, learning disabilities, a back or leg impairment, psychiatric disabilities and others.
The NPRM does away with the concept of substantially limited in working as relating to a “class” or “broad range” of jobs. Then NPRM notes that an impairment “substantially limits” the major life activity working if it substantially limits an individual’s ability to perform, or to meet the qualifications for, the type of work at issue as compared to most people having comparable training, skills and abilities. The determination of whether an impairment substantially limits the major life activity of working must also be construed broadly. The NPRM further cautions employers that this examination should not demand extensive analysis.
Thus, the focus will be on the “type of work” and the job-related requirements characteristic of the type of work.
Although there are a number of other changes proposed in the NPRM, one of the final significant changes is the direction that the analysis of whether an individual is substantially limited is not determined by what the individual can do in spite of an impairment, but rather by the limitations imposed by that impairment. This directive changes the analysis utilized by the courts under the prior ADA standards, which held that individuals who were able to perform a variety of other jobs, or who were able to perform other activities central to daily life, where not disabled based upon what they were able to do in spite of their impairment. This analysis would no longer be valid under the NPRM.
For more information on the proposed NPRM, please contact CGA’s Labor and Employment Department.
Anne E. Zerbe
717.848.4900 ext. 104 
717.843.9039
azerbe@cgalaw.com
