Who is protected under the ADA?
The ADA prohibits discrimination by employers against qualified individuals with disabilities. To be considered qualified, individuals must have all relevant certifications, education and experience as well as be able to perform the essential functions of the job they hold or seek, with or without reasonable accommodation. Put another way, employees who cannot do the essential functions of the job — with or without reasonable accommodation — are not protected by the ADA. The only exception to this rule is when an employer regards a person as disabled. See page 9 for more on "regarded as disabled."
Nine rules of construction to be used to determine if an impairment substantially limits a major life activity.
- Standard is not demanding.
- Look at whether the impairment substantially limits a major life activity as compared to most people in general population. Need not severely restrict.
- Substantial impairment is not object of focus. No extensive analysis required. Focus is on whether discrimination occurred.
- Individualized assessment is necessary, but standard is much lower than it used to be.
- Comparison of limitation as compared to most people in general population will not need scientific analysis.
- Do not consider corrective measures except eyeglasses or corrective lenses.
- An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
- Impairment need only limit one major life activity.
- Impairment can last less than six months.
The definition of disability under the ADA differs from the definition of disability in an insurance contract and generally is broader. By enacting the ADA Amendments Act of 2008, Congress changed the definition of disability, giving more individuals the protection of the ADA. This handbook incorporates the 2008 changes which were effective January 1, 2009. It also incorporates the regulatory changes made by the EEOC regarding the definition of disability, effective May 24, 2011 as well as regulatory changes on wellness programs and pregnancy. The ADA's broader definition of disability allows an individual to qualify for protection under the law in one of three ways, namely that the individual:
- has a disability;
- has a record of a disability; or
- is regarded as having a disability.
Let’s look at each one of these separately.
First, a person is protected as disabled if he or she has a physical or mental impairment that substantially limits one or more major life activities. In the ADA Amendments Act, Congress redefined these three components:
- a physical or mental impairment;
- that substantially limits;
- one or more major life activities.
An employee or applicant must meet all three criteria to meet the definition of disability.
Physical impairments can range from neurological or respiratory conditions to cosmetic disfigurements or anatomical losses. Mental impairments include emotional or mental illness and can include certain learning disabilities or other conditions.
Substantially limited was redefined by the 2009 changes and the new regulations.
The EEOC has given employers nine rules of construction to use to determine if an impairment substantially limits a major life activity but never actually defines "substantially." They have said that "substantially limits" means not "significant" or "severely restricting" but "important."
Multiple impairments that combine to substantially limit one or more major life activities can also be a disability. An example of this would be a person who has a lung impairment and a back impairment which combine to substantially limit the major life activity of walking. This person would be considered disabled even if the lung and back impairments on their own are not disabling.
Also, if a person has an impairment that limits only one major life activity, it is sufficient to qualify that person as disabled. Therefore, if an employee with asthma is substantially limited in the major life activity of breathing, that person is likely to be considered disabled, even if he or she is otherwise unimpaired in other activities such as walking or running.
An employee with an impairment that is episodic or in remission is considered to have a covered impairment if the impairment, when active, substantially limits one or more major life activities. This includes conditions such as epilepsy, hypertension, multiple sclerosis, asthma and diabetes.
When you evaluate whether an impairment substantially limits a major life function, you may not consider mitigating measures such as:
- assistive technology;
- behavioral modifications or accommodations;
- modifications, etc.
Your assessment must be made without regard to mitigating measures. An exception is made for ordinary eyeglasses and contact lenses; however, employers may not screen out people with ordinary eyeglasses and contact lenses unless there is a business necessity.
The only time employers can consider mitigating measures is when they create negative effects. For instance, if the medication or other treatment an individual is taking substantially limits a major life activity (again, including a major bodily function), even if the condition for which he/she is being treated would not otherwise have such an effect, the individual will be considered disabled under the new ADA.
In any event, employers must assess whether the individual is substantially limited "as compared to most people in the general population."
Major life activities:
There is now a list of activities that may be considered major life activities, but Congress specifically indicated that there may be major life activities that are not on the list.
This list includes:
- caring for oneself
- performing manual tasks
- interacting with others
Working, sleeping, concentrating, thinking and communicating were added to the other previously accepted major life activities by the 2008 amendments. Sitting, reaching and interacting with others were added by the 2011 regulations.
Major life activities also include the operation of major bodily functions such as:
- functions of the immune system
- normal cell growth
- reproductive functions
- special sense organs
Virtually always disabling conditions: In the new regulations, the EEOC developed a list of impairments that will almost always be considered disabling. This list covers deafness, blindness, intellectual disability, missing limbs or mobility impairments requiring the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder and schizophrenia.
Although employers will still have to do an individual assessment of whether the person’s impairment is a disability, in virtually all cases, the above impairments will qualify.
Second, the definition of disability under the ADA may also be satisfied when there is a record of having such a disability. This part of the definition seeks to prohibit discrimination against people who may have a history of disability, such as cancer survivors.
One change that the 2011 regulations made was to give those with a record of disability the right to get reasonable accommodation.
And third, a person may be protected as disabled if he or she is simply regarded as having such an impairment. This protection was put into place because Congress was seeking to target discrimination based on perceptions or attitudes as well as actual impairments.
A manager who treats an employee differently from other employees because of an actual or perceived impairment may be violating the ADA, arguably even if the employee is not in fact disabled. Employees who claim that they are regarded as disabled often use managers’ stray comments to support their claims that they were treated poorly or differently. Training for managers to be more sensitive in what they say will help employers avoid this type of case.
That said, individuals with actual or perceived impairments that are transitory (having an actual or expected duration of six months or less) and minor are not considered protected under this "regarded as" definition.
It is clear that employers don’t have to accommodate individuals who claim "regarded as" discrimination. If an employee seeks to pursue discrimination and failure-to-accommodate claims, the employee will add a "regarded as" claim.
One important thing to remember is that managers must not prohibit a person with a physical or mental condition from doing a job just based on the manager’s beliefs; current medical information is required.