Broad Scope of "Disability" Reflected under New ADA Regulations

• Definition of Disability: The regulations now explicitly state that the definition of disability "shall be construed broadly, to the maximum extent permitted by the terms of the ADA."
• Substantially Limited: As before, the term "disability" means:
  • A physical or mental impairment that substantially limits one or more of the major life activities;
  • A record of such an impairment; or
  • Being regarded as having such an impairment.

  However, the definition of "substantially limits" is amended to clarify 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. It need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be construed as a disability. Several examples are given to illustrate the concept. For example, an individual with a 20-pound lifting restriction that is not of short-term duration is "substantially limited," and need not also show that he is unable to perform the activities of daily living that require lifting in order to be considered "substantially limited."

• Major Life Activities: The definition of "major life activities" is expanded through two nonexhaustive lists that identify:
  • "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, and working;" and

  • "The operation of major bodily functions, including functions of the immune system, special sense organs, and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. For example, kidney disease affects bladder function; cancer affects normal cell growth; diabetes affects functions of the endocrine system (e.g., production of insulin); epilepsy affects neurological functions or functions of the brain; and Human Immunodeficiency Virus (HIV) and AIDS affect functions of the immune system and reproductive functions. Likewise, sickle cell disease affects functions of the hemic system, lymphedema affects lymphatic functions, and rheumatoid arthritis affects musculoskeletal functions."
• Mitigating Measures: Mitigating measures -- such as medication, equipment, assistive technology, or learned behavioral or adaptive techniques (but not ordinary eyeglasses or contact lenses) -- are not considered in assessing whether an individual has a disability. For example, an individual taking insulin for diabetes has an impairment if the diabetes, if left untreated, would substantially limit a major life activity.
• Impairments that Are Episodic or in Remission: An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. Examples include hypertension, asthma, depression, bipolar disorder and post-traumatic stress disorder.
• "Regarded as" Having an Impairment: An individual is "regarded as" having an impairment if he or she is subject to an action prohibited by the ADA (e.g., failure to hire, denial of promotion) because of an actual or perceived impairment -- unless the impairment is minor. It no longer requires a showing that the employer perceived the individual to be "substantially limited in a major life activity."
• Actions Taken Based on Symptoms or Use of Mitigating Measures. Actions based on symptoms of an impairment, or based on medication or any other mitigating measure, are considered to be actions based on an impairment. For example, an individual who is not hired for a driving job because he takes anti-seizure medicine is regarded as having a disability, even if the employer is unaware of the reason the employee is taking the medication. The EEOC has specifically asked for public comment on this provision.
• Uncorrected Vision: Qualification standards, employment tests, or other selection criterion based on an individual's uncorrected vision can not be used unless they are shown to be jobrelated and consistent with business necessity.

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Copyright 2009, Deloitte.

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