ADA Regulations, Part 3

The first two articles of this series on recent regulations to carry out the ADA Amendments Act of 2008 dealt with an overview of the act and the changes in the definitions of "disability," "substantially limits," and "major life activities." This article will concentrate on the role of mitigating measures and other minor changes in the regulations.

The final regulations retain the statutory requirement that mitigating measures, other than ordinary eyeglasses or contact lenses, must not be considered in determining whether an individual has a disability. While the regulations added psychotherapy, behavioral therapy, and physical therapy as mitigating measures, the list is not all-inclusive and other mitigating measures may be considered.

The EEOC has included a statement in the appendix pointing out that the determination of whether or not an individual's impairment substantially limits a major life activity is unaffected by whether the individual chooses to forgo mitigating measures. For individuals who do not use a mitigating measure (including, for example, medication or reasonable accommodation that could alleviate the effects of an impairment), the availability of such measures has no bearing on whether the impairment substantially limits a major life activity.

The origin of the impairment, whether its effects can be mitigated, and any ameliorative effects of mitigating measures in fact used, may also not be considered in determining if the impairment is substantially limiting. In fact, the final regulations affirmatively state that non-ameliorative effects may be considered in determining whether an impairment is substantially limiting. However, the use or non-use of mitigating measures, and any consequences thereof, including any ameliorative and non-ameliorative effects, may be relevant in determining whether the individual is qualified or poses a direct threat to safety.

The EEOC has eliminated "surgical interventions, except for those that permanently eliminate an impairment" as an example of a mitigating measure, given the confusion evidenced in the comments about how this example would apply. In addressing what type of evidence would be sufficient to establish whether an impairment would be substantially limiting without the ameliorative effects of a mitigating measure that the individual uses, the EEOC has added to the appendix a statement that such evidence could include evidence of limitations that a person experienced prior to using a mitigating measure, evidence concerning the expected course of a particular disorder absent mitigating measures, or other readily available and reliable information. In dealing with illnesses that may be in the early stages, episodic or in remission, the EEOC has indicated in the regulations and appendix provisions on mitigating measures that the issue may in some cases be resolved by looking at evidence such as limitations experienced prior to the use of the mitigating measure or the expected course of a disorder absent mitigating measures.

Other regulatory changes include 29 CFR § 1630.2(m) eliminating the use of the term "qualified individual with a disability," 29 CFR § 1630.4 which states that there is no basis for a claim that an individual without a disability was subject to discrimination because of his lack of a disability, and 29 CFR § 1630.9 which states that an employer is not required to provide a reasonable accommodation to an individual who meets the definition of disability solely under the "regarded as" prong in 29 CFR § 1630.2(g)(1).

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to https://www.passmanandkaplan.com.