Background

When the Americans with Disabilities Act (“ADA”) was signed into law in 1990, Congress expected its definitions and provisions to be interpreted expansively and in favor of broad coverage, as had been done under the Rehabilitation Act of 1973.[¹] However, several US Supreme Court cases from the late 1990’s through the early 2000’s “sharply narrowed the broad scope of protection Congress originally intended.”[²]  Lower courts followed the logic of these decisions in ruling upon cases brought under the ADA and further eroded its protections.

In response, Congress amended the ADA with the Americans with Disabilities Act Amendments Act of 2008 (“Amendments Act”).  The Amendments Act added new Findings and Purposes sections, focused exclusively on the restoration of Congress’s original intent of expansive interpretation and broad coverage.[³]  Congress intended to make clear that the primary objective of analysis should be whether a covered entity complied with its  obligations and whether discrimination has occurred, not whether an impairment is a disability as defined by the ADA.[⁴] See the Volume 6, Winter 2008 PWDF e-newsletter for PWDF’s analysis comments on the ADA Amendments Act.

The US Department of Justice issued a final rule to amend the ADA Title II (State and Local Government Entities) and Title III (Public Accommodations and Commercial Facilities) regulations to incorporate the changes of the Amendments Act on August 11, 2016.  These amendments “restore the understanding that the definition of ‘disability’ shall be broadly construed and applied without extensive analysis.”[⁵] The rule took effect October 11, 2016.  Note that when citing to the final regulations herein, we have included the regulation section for Title II and may not always include the Title III equivalent regulation section since it is usually the same.

“Disability” Defined

The definition of “disability” under the ADA includes three possible categories, also called “prongs.”  These include a physical or mental impairment that substantially limits one or more major life activities; or, a record of such an impairment; or, being regarded as having such an impairment.[⁶]  The first prong includes the major criteria to be met to find a “disability” under the Amendments Act: a “physical or mental impairment” that “substantially limits” one or more “major life activities.” The Amendments Act makes it clear that Congress wants the phrase “substantially limits” to be read and applied to cases in a way that provides coverage to the maximum extent under the ADA.[⁷] In so doing, Congress provided rules of construction for the courts, addressing several areas previously narrowed by case law.[⁸]  Two of the areas for which Congress provided rules of construction are the impact of “mitigating measures” and the existence of “episodic” physical or mental impairments.  These are discussed further below.

The second prong of the definition of disability is satisfied when evidence of record establishes that an individual previously has had a substantially limiting impairment.  While there are many types of records that could establish this history, past history of an impairment need not be reflected in a specific document.  However, for a covered entity to be liable under the ADA, the individual with a record of a substantially limiting impairment must prove that the entity discriminated on the basis of the record, even if the impairment no longer substantially limits a major life activity.[⁹] Under this prong, the individual is entitled to a reasonable modification or accommodation if currently needed relating to the past impairment.[¹⁰] The guidance to the regulations uses the following example:  a high school student had an impairment that previously substantially limited a major life activity, but no longer does so. The student may need permission to miss a class or have a schedule change to attend follow-up or monitoring appointments from a health care provider.[¹¹]

“Regarded as” (third prong) means the individual is “disabled” under the law, whether or not s/he actually has an impairment that substantially limits a major life activity. If the alleged discriminator perceives the person as having a disability, then the individual is covered under the Act but not entitled to reasonable accommodation(s). Examples include someone regarded as having cancer or HIV, but who does not have it.

The third prong of the definition of disability (being “regarded as”) exists specifically to protect persons who do not meet the requirements of either of the first two prongs, but nevertheless have been subject to adverse decisions by covered entities based upon unfounded concerns, mistaken beliefs, fears, myths or prejudices about persons with disabilities.[¹²]  Covered entities have no duty to provide reasonable accommodations or modifications to individuals who only meet the definition of disability under this prong.[¹³]

Mitigating Measures

Prior to passage of the Amendments Act, the US Supreme Court held that “ameliorative mitigating measures” must be considered when evaluating whether an impairment substantially limits a major life activity.[¹⁴] The new regulations now state that the determination of disability “shall be made without regard to the ameliorative effects of the mitigating measures.”[¹⁵] For example, the fact that someone takes medicine or uses a device that helps the person manage the impairment may not be considered by a covered entity or a court when determining whether an impairment substantially limits a major life activity.  (An exception to this regulation is made for eyeglasses or contact lenses, which shall be considered in determining whether a major life activity is substantially impaired.[¹⁶])

Mitigating measures include medications and psychotherapy, as well as learned behavioral modifications.[¹⁷] The regulations provides that a court consider the negative effects of mitigating measures when determining whether an impairment substantially limits a major life activity.  These could include negative side effects from medication or burdens associated with following a particular treatment regimen.[¹⁸]

Additionally, the regulations label certain conditions “predictable assessments,” which will virtually always be found to impose a substantial limitation on a major life activity.  “Predictable assessments” include intellectual disability, autism, cerebral palsy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, traumatic brain injury, obsessive-compulsive disorder and schizophrenia, among others.[¹⁹]

Finally, while “ameliorative mitigating measures” may not be considered when determining whether someone has a disability, they may be considered when determining whether someone is entitled to a reasonable accommodation or modification.  Thus, someone who takes medication for bipolar disorder or schizophrenia, for example, would be considered disabled and entitled to protections under the ADA, even if their conditions significantly improve while taking the medications.  (Note that this differs from the rules in Social Security disability programs, where someone whose impairments are controlled by medications may not be considered disabled.)

Episodic Impairments

The regulations state that impairments that are episodic or in remission are disabilities if they would substantially limit a major life activity when active.[²⁰]  In other words, if the impairment would substantially limit a major life activity when active, it is a disability under the ADA, even if inactive.  This rejects the reasoning of court cases that found these types of impairments were too short-lived to substantially limit a major life activity.[²¹] Episodic impairments experienced by PWDF’s clients may include, but are not limited to, major depressive disorder, bipolar disorder, post-traumatic stress disorder, and schizophrenia.

Although people who experience episodic impairments that substantially limit a major life activity are considered disabled under the ADA, they are not necessarily entitled to permanent reasonable accommodations.  They may be entitled to reasonable accommodations if currently needed and related to the past disability.[²²]  The regulations are silent as to whether the reasonable accommodation must be requested every time it is needed.

Conclusion

While these changes are welcomed by PWDF and our service population, how they are applied by covered entities and courts remains to be seen.  Promulgating regulations that implement the Amendments Act is a positive step towards ensuring that more individuals will be protected by the ADA in the future.  PWDF will keep you informed as the amendments are applied.