At long last the EEOC has issued its final regulations for the Americans With Disabilities Amendments Act. In so doing, the EEOC has taken Congress’ words contained in the Act and declared (repeatedly) that the definition of “disability” is to be read very broadly and that employers should instead focus on whether discrimination has occurred or an accommodation is needed. As we've noted in our prior ADAAA coverage, we think that many more disability lawsuits will be filed and far fewer of them will be dismissed on summary judgment. As the EEOC sees it, “many more ADA claims will focus on the merits of the case.”
What Hasn’t Changed
Most of the terms used in the original ADA haven’t changed. The Final Regulations do not alter the definitions of “qualified,” “reasonable accommodation,” “direct threat,” and “undue hardship.” And there are still three ways to come within the scope of the statute: “Actual” disability; “record of” disability; and “perceived as” disabled. The “perceived as” category has some substantial changes, as discussed below.
What Has Changed
1. Mitigating measures can no longer be taken into account when determining whether a person is disabled. (Except, individuals with with regular vision correction such as eyeglasses or contact lenses are still considered in their mitigated state for purposes of determining whether they have a disability.) This means that if the employee’s condition is entirely treated (heart disease is kept under control by medication, for example), the employee’s “disability” is evaluated without consideration of the treatment. Of course, if a person’s condition is controlled entirely by medicine or an assistive device or some other measure, it may mean that no accommodation is needed.
2. A “regarded as” claimant need no longer prove that he or she is perceived as a “disabled” person (i.e., a person with a physical or mental impairment that substantially limits a major life activity). Instead, a “regarded as” claimant need only show that the employer discriminated against him or her based on a belief that the employee (or applicant) had an impairment. However, if the employer can show that that the employee’s (or applicant’s) condition is actually just “transitory [i.e., lasting six months or less] and minor,” then the employee can’t be “regarded as” disabled. The six month time limit does not apply to evaluation of an actual disability or a record of a disability. And, in fact, the “rules of construction” contained in the Final Regulations specify that a disability may last less than six months.
3. The list of examples of “major life activities” is expanded and now includes “major bodily functions.” The rules make it clear that this is not a demanding standard. The major life activity need not be central to daily living, and it doesn’t have to severely or significantly limit the person’s ability. The final rule provides non-exhaustive lists of what constitutes a major life activity. Such activities include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, working and performing major bodily functions. Bodily functions include 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.
4. Given the new lists, some conditions will almost always be deemed to substantially limit a major life activity. The ones mentioned in the Final Regulations are: Deafness, blindness, intellectual disability (formerly known as mental retardation), partial or completely missing limbs, mobility impairments requiring use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia. Of these, perhaps the most troubling are autism and PTSD since both are ill-defined in the medical literature and exist on very broad spectrums of impairment.
5. The changed definition of “disability” applies to Title II of the ADA (State and local governments) and Title III (private places of public accommodation).
6. The phrase “qualified individual with a disability” has disappeared and instead the Final Regulations refer to “individual with a disability” and “qualified individual” separately. Again, these changes are intended to focus the inquiry on whether discrimination has occurred, and away from whether the individual meets the definition of “disability.”
More Lawsuits to Follow
In our experience, the vast majority of employers do try to fully comply with the ADA. Unfortunately, the ADAAA and these new Final Regulations assume just the opposite; by removing practically any burden on the employee to show that he or she is disabled, Congress and the EEOC have clearly shifted the burden to employers.
For more ADAAA information, check out:
- Questions and Answers on the Final Rule Implementing the ADA Amendments Act of 2008
- Questions and Answers for Small Businesses: The Final Rule Implementing the ADA Amendments Act of 2008
- Fact Sheet on the EEOC’s Final Regulations Implementing the ADAAA
Oregon’s 76th Legislative Assembly convened on February 1, 2011. The Legislature has wasted no time introducing a multitude of new labor and employment bills, some with potentially far reaching effects. Below is a (non-exhaustive) list of some of the more interesting bills up for debate:
- HB 2035 -- Standardizes statute of limitations period for filing discrimination lawsuits. A person who has filed a BOLI complaint must file a lawsuit within one year of the occurrence of the unlawful practice or within 90 days of the mailing of BOLI’s 90-day notice, whichever is later.
- HB 2036 -- This bill was introduced at the request of the Commissioner of BOLI, and attempts to accomplish several significant changes. First, it proposes to lower the standard as to what’s considered a “substantial limitation in a major life activity,” and clarifies certain aspects of state statutes related to discrimination against individuals with disabilities. Second, it grants BOLI the authority to enforce provisions for employees to take crime victim leave to attend criminal proceedings. Third, it will allow employers to make decisions based on credit history of applicants for public safety officer employment.
- HB 2243 -- Allows Attorney General or BOLI to file suit related to discrimination against person for uniformed military service; includes $50,000 penalty for first violation, and $100,000 penalty for each subsequent violation.
- HB 2446 and HB 2771 seek to respectively amend and repeal ORS 659.70 and 659.785 related to workplace communication on employer opinions on religion and politics. While HB 2771 would seek to repeal those provisions entirely, HB 2446 seeks to amend the definitions and exceptions to those provisions and amend the damages as well.
- HB 2828 -- Would make it unlawful (including a civil penalty of $750) to cease to provide health, disability, life or other insurance during period employee serves on a jury.
- HB 2862 -- This bill would extend various anti-discrimination laws to persons working for educational purposes or as volunteers.
- HB 2095 -- Requires granting family leave under OFLA for academic activities of the employee’s child, including teacher conferences or meetings, and requires granting up to 18 hours of family leave for academic activities in a one-year period, but not more than six hour per calendar month.
- SB 506 -- Allows eligible employee to take family leave related to the death of a family member.
- HB 2850 -- Adds siblings as covered family members under OFLA.
Wage and Hour:
- HB 2038 -- Modifies expression of breast milk provisions. Requires employers to provide a reasonable rest period each time an employee has a need to express milk and eliminates the undue hardship exception for employees with 50 or more employees
- HB 2040 -- Requires unpaid wages requested by employee post-termination or discharge to be mailed by certified mail, return receipt request.
- HB 2230 -- Requires employers to offer first payment to a new employee within 14 days of employment, unless declined by employee. Carries a maximum fine of $720 for violations.
- HB 2861 -- Expands Oregon’s wage discrimination law to bar wage discrimination based on a more expansive list of protected classifications, not just sex.
- Immigration: HB 2802 and HB 2973 include a variety of immigration-related provisions, some of which would affect employers. One such provision includes a prohibition against knowingly employing unauthorized aliens, which includes a maximum six-month prison sentence and/or up to $2,500 fine. Another would require employers to verify immigration status of employees hired after January 1, 2012, and authorizes the Attorney General to investigate violations and suspend or revoke business licenses of violators.
- Health Care Employees: SB 199 -- Requires health care facilities/employers of 25 or more employees to provide mandatory annual vaccinations against influenza, varicella zoster, pertussis, Hepatitis B, measles, mumps and rubella at no cost to employees.
World of Employment will keep you updated regarding the status of these (and other) bills up for debate this legislative session, and will provide an end-of-session wrap-up of the winners and losers.
Is driving a car a major life activity under the Americans with Disabilities Act (ADA)? No, the Tenth Circuit Court of Appeals recently concluded, joining two other federal circuit courts that have held that just because a person cannot drive does not mean that person meets the legal definition of "disabled." Kellogg v. Energy Safety Services, Inc.
Kellogg, who has epilepsy, sued her employer alleging disability discrimination. Kellogg asserted that because she is not allowed to drive due to the risk of seizure, she is substantially limited in the major life activity of "driving." After Kellogg prevailed on her claim at a jury trial, The Tenth Circuit reversed. (The Tenth Circuit covers Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah.)
The court held that driving is merely a "means to an end," and not a major life activity in and of itself. For some plaintiffs, an inability to drive may prevent them from engaging in other major life activities (such as working), but because Kellogg presented no evidence that she was substantially impaired in any activity except driving, she failed to prove she was "disabled." The Tenth Circuit thus joins both the Second and Eleventh Circuits in holding that driving is not a major life activity.
Don't expect Kellogg to set precedent for long: this case almost certainly would have been decided differently under the ADA Amendments Act (ADAAA), which goes into effect January 1, 2009. Under the much broader definition of "disability" under the ADAAA, Kellogg's epilepsy alone almost certainly would have qualified her for the protections of the ADA. For more on the ADAAA, check out the Stoel Rives World of Employment's coverage, here.