Blog Post by Anna M. Pepelnjak.
Just as under the ADA, an employee is disabled if s/he (a) has a physical or mental impairment that substantially limits a major life activity, (b) has a record of such an impairment, or (c) is regarded as having such an impairment.
Under the new law, the definition of disability is interpreted broadly; in fact, the term “substantially limits”: means just that, not totally limited, not severely limited, but an undefined amount less than that. “Impairment” includes any psychological disorder or condition, cosmetic disfigurement or anatomical loss affecting one or more of the following bodily systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin and endocrine; or any mental or psychological disorder such as an intellectual disability (formerly termed mental retardation), organic brain syndrome, emotional or mental illness and specific learning disabilities.
“Impairments” that will consistently qualify as disabilities are: Autism; Cancer; Cerebral Palsy; Diabetes; Epilepsy; HIV/AIDS; Multiple Sclerosis; Major Depression; On the other hand, impairments that may be disabling for some, but not for others include: Asthma; High blood pressure; Learning disability; Back or leg impairment; Psychiatric impairment; Carpal tunnel syndrome; Hyperthyroidism.
“Major life activities” are also redefined to include activities and bodily functions. Activities: 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. Bodily functions: immune system, special sense organs and skin, normal cell growth, and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeleta and reproductive functions.
Unlike the ADA, mitigating measures are not determinative; “An individual who, because of the use of medication or another mitigating measure, has experienced no limitations or only minor limitation related to an impairment, nevertheless has a disability if the impairment would be substantially limiting without the mitigating measure” For example, it doesn’t matter that a diabetic controls the condition by diet and exercise or by medication; that person is disabled. Or if a hearing impaired person uses a hearing aid which enables him or her to hear normally; that person is disabled; Or if a surgical intervention exists that would eliminate the claimed disability entirely; that person is disabled.
Whether the condition is episodic or in remission is not determinative if the impairment would substantially limit a major life activity when active.
Rules of Construction: In response to Congress’ mandate to promulgate regulations addressing the definition of “substantially limits”, the proposed regulations include five rules of construction:
- The focus of ADA cases should be on whether discrimination occurred, not on the definition of “disabled”; whether an impairment substantially limits a major life activity should be “construed broadly,” and the determination of whether someone is disabled should “not demand extensive analysis.”
- In order to demonstrate that an individual is substantially limited in a major life activity, the individual does not need to demonstrate that he or she is limited in “activities of central importance to daily life.”
- An individual may be able to demonstrate that he or she is disabled based upon an impairment that substantially limits only one major life activity.
- The determination of an individual’s limitation “may be made using a common-sense analysis without resorting to scientific or medical evidence” when comparing the individual’s limitation to that of most people in the general population.
- Impairments that last for fewer than six months may still be substantially limiting.
Practical Implications: Explicitly basing an adverse employment action on a disability will trigger almost automatic exposure to liability. Imposing an adverse employment action on a disabled person for reasons other than their disability becomes a matter of proof. The focus is now on accommodation, which requires engaging in an interactive process to identify what, if any, accommodation will enable the employee to perform the essential functions of his/her job.