Last week, I discussed the Equal Employment Opportunity Commission ("EEOC")'s new regulations regarding the Americans with Disabilities Act Amendments Act (ADAAA) which discuss the newly broadened scope of the ADA, and the terms "major life activity" and "substantially limited." In this article, I will focus on ADAAA regulations that cover the concept of "mitigating measures" for disabilities, and how to prove that an employee has a "record of" a disability or is "regarded as" having a disability.
What Are "Mitigating Measures," and When Can They Be Taken Into Consideration Under the ADAAA?
Under the ADAAA, most "mitigating measures" must be ignored when determining whether an individual is disabled include. A mitigating measure is something that reduces or minimizes the limitations caused by a disability. Examples of mitigating measures include medication, medical equipment and devices, prosthetic limbs, low vision devices, hearing aids, mobility devices, oxygen therapy equipment, use of assistive technology, reasonable accommodations, learned behavioral or adaptive neurological modifications, psychotherapy, behavioral therapy, and physical therapy.
However, the new ADAAA regulations indicate it is appropriate to consider the negative side effects of a mitigating measure when determining whether an individual is disabled. Similarly, it is proper to consider a mitigating measure when deciding whether an employee is qualified for his job, or is entitled to a reasonable accommodation for his disability.
What Does it Mean to Have a "Record of" a Disability?
In addition to protecting individuals who are actually disabled, the ADA protects individuals with a "record of" a disability. Under the new ADAAA regulations, someone has a record of a disability if he previously had an impairment that substantially limited him in a major life activity, or was misclassified as having an impairment that substantially limited a major life activity.
What Does it Mean to Be "Regarded as" Having a Disability?
The ADAAA also protects individuals who are "regarded as" being disabled. According to the new regulations, this includes any employee whose employer correctly or incorrectly believed he has an impairment, unless the employer reasonably believed the impairment was both minor and expected to last for six months or less. Unlike the previous ADA regulations, under the new regulations an employer does not have to believe the impairment substantially limited the employee's ability to perform a major life activity to regard an employee as disabled.