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The ADA Amendments Act went into effect on Jan. 1, 2009. The act rejected the courts' and the EEOC's restrictive interpretation of the Americans with Disabilities Act. The goal of the new law, Congress said, is to broaden the coverage of protection afforded by the ADA.

The ADAAA states that a "disability" is a "physical or mental impairment that substantially limits one or more major life activities." In September 2009, the EEOC issued proposed rules implementing the ADAAA. The regulations state that many disability determinations "may be made using a common-sense standard, without resorting to scientific or medical evidence."

Also, the expansion of the list of major life activities, the lack of clarity for evaluating limitations, and the lack of proof necessary to substantiate a disability will make compliance with the laws challenging for employers. Several employment lawyers filed comments with the EEOC expressing their concerns.

Thomas Krukowski of Krukowski & Costello in Milwaukee said the proposed regulations fail to account for the possibility of individual abuses and the costly litigation likely to follow.

"The EEOC should at least tactfully caution against the possibility of deception or misapplication of the new law," he wrote. Krukowski compared the EEOC's definition of "substantially limits" and its protocol for making a disability determination to discerning protected status under Title VII employment discrimination laws. But unlike Title VII lawsuits, where the characteristics for determining whether one is a member of a protected class are immutable and individuals are not entitled to accommodations, "disabled" status is highly variable.

"These two considerations will remain problematic until the EEOC clarifies what constitutes a disability and how the determination is made," he said.

Timothy S. Bland of Ford & Harrison in Memphis, Tenn., asked the commission to provide "affirmative guidance as to how the impairment must limit a major life activity" to qualify as a disability under the act. "The changes to the definition of 'substantially limits' present a risk that courts will find mere impairments to be covered disabilities, a scenario never contemplated by Congress in drafting the ADA," he said. "We request that the EEOC draft a new definition for 'substantially limits' that better adheres to Congress' intent."

Symptoms of impairments. The ADAAA also protects individuals who are "regarded as disabled." The proposed regulations modify the prior definition of "regarded as." They no longer require a showing that the employer perceived the individual to be substantially limited. Instead, applicants or employees subjected to a prohibited action because they are "regarded as" disabled will qualify as disabled under the ADAAA unless the impairment is both transitory and minor.

Bland noted that the proposed regulations broaden the concept of "perceived impairment" so that any indication of potential impairment -- no matter how minute -- could create potential liability for employers. This would include symptoms of impairments.

"Under the proposed rule, employment decisions based on 'symptoms' and 'mitigating measures' are sufficient to create 'regarded as' liability for employers," he said. "We cannot find any language in either the text or legislative history of the ADAAA that indicates Congress intended symptoms and mitigating measures to be considered as impairments themselves. Presumably, even the most minor 'symptom' . . . will be sufficient for a plaintiff to establish a prima facie case of discrimination."

James McDonald Jr. of Fisher & Phillips LLP in Irvine, Calif., also questioned the regulations which present an example of an employer regarding as disabled an applicant he refuses to hire because of a facial tic despite being unaware that the tic was caused by Tourette syndrome.

"This example, if allowed to remain in the final regulations, likely will be invoked by advocates for employees with mental disabilities" to argue that a mental disorder caused conduct that was grounds for discipline or termination, he predicted. "As such, this example would seem to constitute a significant, albeit unintended, change in the position of the commission."

He urged the EEOC to ensure its examples mirror its position in its Guidance on Performance and Conduct Standards regarding an employer's right to discipline an employee for misconduct and to delete the Tourette example "so as not to suggest that an employer might violate the ADA by making an employment decision based on conduct it does not know or have reason to believe is related to a disability."

Working as major life activity. The EEOC's proposed regulations expand the impaired major life activities that will allow an individual to qualify as disabled.

The Chicago law firm Hinshaw & Culbertson LLP said its clients consider the regulations' non-exhaustive list of major life activities as being "overly inclusive." A survey of 70 client companies revealed that 61 percent believe activities such as "learning, concentrating, thinking and interacting with others" should be excluded from the list because too many individuals who have difficulty working with others might qualify and because evaluating these types of impairments would make the area "ripe for abuse."

Krukowski questioned the lack of guidance for evaluating a reported impairment of a bodily function and asked that the commission clarify regulations to allow employers to seek medical evaluations to confirm the existence of disabilities with regard to major bodily functions.

"[O]therwise, the law will require reliance on an individual's self-serving statement -- a self-diagnosis -- and nothing more," he said.

Read more at the WORKERSCOMP Forum^TM homepage.

April 5, 2010

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