The definition of “disability” is about to change at the Federal level

In my last article, I said the definition of “disability” in California is more broadly defined than the Federal ADA definition.

The Federal definition states that it must “substantially limit” a major life activity whereas the California definition merely states that it need only to “limit” a major life activity.

Well, there are new changes coming down from the Civil Rights Division in the Department of Justice next month that will add, modify and more clearly define what a disability is.

This rule change will take effect October 11, 2016. The Department of Justice is issuing this final rule to amend its Americans with Disabilities Act (ADA) regulations in order to incorporate the statutory changes to the ADA set forth in the ADA Amendments Act of 2008, which took effect on January 1, 2009.

In response to earlier Supreme Court decisions that significantly narrowed the application of the definition of “disability” under the ADA, Congress enacted the ADA Amendments Act to restore the understanding that the definition of “disability” shall be broadly construed and applied without extensive analysis.

Congress intended that the primary object of attention in cases brought under the ADA should be whether covered entities have complied with their statutory obligations not to discriminate based on disability. In this final rule, the Department is adding new sections to its title II and title III ADA regulations to set forth the proper meaning and interpretation of the definition of “disability” and to make related changes required by the ADA Amendments Act in other sections of the regulations. 

The meaning and interpretation of the definitions of “disability” in the title II and title III regulations are identical, and the preamble will discuss the revisions to both regulations concurrently.

Because the ADA Amendments Act's revisions to the ADA have been codified into the U.S. Code, the final rule references the revised U.S. Code provisions except in those cases where the reference is to the Findings and Purposes of the ADA Amendments Act, in which case the citation is to section 2 of Public Law 110-325, September 25, 2008:

[1]The purpose of this rule is necessary in order to incorporate the ADA Amendments Act's changes to titles II (nondiscrimination in State and local government services) and III (nondiscrimination by public accommodations and commercial facilities) of the ADA into the Department's ADA regulations and to provide additional guidance on how to apply those changes. The ADA Amendments Act was signed into law by President George W. Bush on September 25, 2008, with a statutory effective date of January 1, 2009. The Act authorizes the Attorney General to issue regulations under title II and title III of the ADA.

Summary of Key Provisions of the Act and Rule

The ADA Amendments Act made important changes to the meaning and interpretation of the term “disability” in the ADA in order to effectuate Congress’ intent to restore the broad scope of the ADA by making it easier for an individual to establish that he or she has a disability.

The DOJ is making several major revisions to the meaning and interpretation of the term “disability” contained in the title II and title III ADA regulations in order to implement the ADA Amendments Act.

These regulatory revisions are based on specific provisions in the ADA Amendments Act or on specific language in the legislative history. The revised language clarifies that the term “disability” shall be interpreted broadly and explains that the primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations not to discriminate based on disability and that the question of whether an individual's impairment is a disability under the ADA should “NOT” demand extensive analysis.

The revised regulations expand the definition of “major life activities” by providing a non-exhaustive list of major life activities that specifically includes the operation of major bodily functions. The revisions also add rules of construction to be applied when determining whether an impairment substantially limits a major life activity.

These rules of construction state the following:

• That the term “substantially limits” shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA

• That an impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population

• That the primary issue in a case brought under the ADA should be whether an entity covered under the ADA has complied with its obligations and whether discrimination has occurred, not the extent to which the individual's impairment substantially limits a major life activity

• That in making the individualized assessment required by the ADA, the term “substantially limits” shall be interpreted and applied to require a degree of functional limitation that is lower than the standard for “substantially limits” applied prior to the ADA Amendments Act

• That the comparison of an individual's performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical evidence

• That the effects of mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a “disability”

• That an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active

• That an impairment that substantially limits one major life activity need not substantially limit other major life activities in order to be considered a substantially limiting impairment.

• The final rule also states that an individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that he or she has been subjected to a prohibited action because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity. It also provides that individuals covered only under the “regarded as” prong are not entitled to reasonable modifications.

The ADA Amendments Act's revisions to the ADA apply to:

• Title I (employment)

• Title II (State and local governments)

• 3) Title III (public accommodations) of the ADA.

So this affects all employers nationwide, state and local government agencies and all private business that are open to the public.

If you have any questions or concerns regarding this amendment please contact me directly.