Substantial Limitation: What It Means for Employers

What it means in practice

The Americans with Disabilities Act (ADA) defines disability in three ways, or "prongs": an impairment that substantially limits one or more major life activities (actual disability), a record of such an impairment, or being regarded as having an impairment (29 CFR 1630.2(g)). "Substantially limits" is the threshold for the first two prongs. This entry explains how that threshold works after the 2008 amendments.

Why Congress changed the standard. In the ADAAA's findings, Congress said Supreme Court decisions in Sutton v. United Air Lines (1999) and Toyota Motor Manufacturing v. Williams (2002) had narrowed the ADA, and that the EEOC's 1991 rule defining "substantially limits" as "significantly restricted" set too high a standard. Congress kept the words "substantially limits" but added rules of construction. The EEOC says the result is that more cases will focus on the merits.

The rules of construction. Under 29 CFR 1630.2(j)(1): the term is construed broadly in favor of expansive coverage and "is not meant to be a demanding standard"; the comparison is to most people in the general population; the main question in an ADA case should be whether the employer met its obligations, so coverage "should not demand extensive analysis"; an individualized assessment is still required, but at a lower level of limitation than before the ADAAA; scientific, medical or statistical analysis is usually unnecessary, though allowed; mitigating measures are disregarded; episodic or remitting impairments count if limiting when active; one major life activity is enough; and short duration does not rule out coverage. Yet that "not every impairment will constitute a disability."

Who the comparison group is. The EEOC appendix explains that the comparison is to people in the general population, not to people in similar circumstances: a person with an amputated limb is compared with most people, not with other amputees. Multiple impairments that together substantially limit a major life activity also count.

Major life activities and major bodily functions. The regulation's non-exhaustive list includes 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 (29 CFR 1630.2(i)). Major life activities also include the operation of major bodily functions, such as immune, neurological, brain, respiratory, circulatory, endocrine, digestive, bowel, bladder and reproductive functions and normal cell growth, including the operation of an individual organ such as the kidney or liver. An activity need not be of "central importance to daily life," a test from Toyota that the ADAAA rejected.

Mitigating measures. Coverage is judged as if the person were not using medication, medical equipment, hearing aids or cochlear implants, prosthetics, mobility devices, oxygen therapy, assistive technology, reasonable accommodations, learned behavioral or adaptive neurological modifications, or psychotherapy, behavioral therapy or physical therapy (29 CFR 1630.2(j)(5)). The exception is ordinary eyeglasses or contact lenses, meaning lenses intended to fully correct visual acuity or eliminate refractive error; the EEOC says someone who wears ordinary glasses for a routine vision problem is not disabled for that reason. Negative effects of a treatment, such as medication side effects or the burden of a treatment regimen, may be considered (29 CFR 1630.2(j)(4)(ii)). The EEOC also says an employer cannot require someone to use a mitigating measure, although not using one may affect whether the person is qualified or poses a direct threat.

Episodic conditions and short duration. An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. The appendix lists epilepsy, hypertension, asthma, diabetes, major depressive disorder, bipolar disorder and schizophrenia as conditions that may be episodic, and says cancer in remission that may return can be covered. Duration is a separate issue: the six-month "transitory" concept applies only to the "regarded as" prong, so an impairment lasting fewer than six months can still be substantially limiting. The appendix example is a back impairment causing a 20-pound lifting restriction for several months, which substantially limits lifting. It also quotes the sponsors' statement that short-term impairments "are typically not covered, although they may be covered if sufficiently severe."

Predictable assessments. Some impairments will, in virtually all cases, meet the standard, and the regulation says the assessment for them should be "particularly simple and straightforward" (29 CFR 1630.2(j)(3)). Examples: deafness (hearing); blindness (seeing); intellectual disability, autism, cerebral palsy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder and schizophrenia (brain function); missing limbs or mobility impairments requiring a wheelchair (musculoskeletal function); cancer (normal cell growth); diabetes (endocrine function); epilepsy, multiple sclerosis and muscular dystrophy (neurological function); and HIV infection (immune function).

Condition, manner or duration. When analysis is needed, it may help to compare the conditions under which, the manner in which, or how long a person can perform an activity (29 CFR 1630.2(j)(4)). Relevant facts include difficulty, effort or time required, pain, and how long the activity can be sustained. The appendix gives examples: someone who cannot stand more than two hours without significant pain is substantially limited in standing, but someone who first feels pain on the eleventh mile of a walk is not substantially limited in walking. The focus is on how the activity is limited, not outcomes, so a person with a learning disability who succeeds academically may still be substantially limited in learning because of the extra time or effort required. The EEOC says these are not a required three-part test.

Working as a major life activity. The appendix says working will be relied on only in targeted situations, because most impairments limit another activity or bodily function. Where it is needed, the person must show a substantial limitation in a class of jobs or a broad range of jobs in various classes, compared with most people with comparable training, skills and abilities; inability to perform one specific job is not enough. A class can be defined by the type of work (such as commercial truck driving) or by requirements (such as heavy lifting or prolonged standing).

The "regarded as" prong. A person is "regarded as" disabled when subjected to a prohibited action, such as refusal to hire, demotion, involuntary leave or termination, because of an actual or perceived impairment, whether or not it is or is perceived to be substantially limiting (29 CFR 1630.2(l)). The employer may defend by showing the impairment is objectively both "transitory" (lasting or expected to last six months or less) and "minor" (29 CFR 1630.15(f)); a subjective belief is not enough. A minor back injury expected to last more than six months, for example, is not transitory. Being regarded as disabled does not by itself establish liability; defenses such as direct threat are a separate question.

How it fits the accommodation process. Because accommodation is owed only under the actual-disability or record-of prongs, substantial limitation matters most when an employee asks for one. The EEOC describes the sequence: when a disability or need for accommodation is not obvious, the employer may ask for reasonable documentation of the disability and functional limitations, limited to what is needed to establish an ADA disability and the need for accommodation. The EEOC says the ADAAA did not change the meaning of qualified, direct threat, reasonable accommodation or undue hardship, or who bears the burden of proving them, so most effort belongs in the interactive discussion. Positive and negative effects of mitigating measures may be considered in deciding what accommodation is needed, even though they are ignored in deciding coverage. A person with a record of a disability may need accommodation such as leave for follow-up monitoring appointments (29 CFR 1630.2(k)(3)).

Worked example: diabetes and breaks. An employee whose diabetes is controlled with insulin asks for short breaks to check blood sugar. Insulin's benefits are disregarded for coverage, and diabetes is on the predictable assessments list as substantially limiting endocrine function, so the coverage step is simple. The EEOC cites such breaks as an accommodation need; what remains is effectiveness and undue hardship.

Worked example: a three-month restriction. After surgery, an employee has a doctor's restriction against lifting more than 20 pounds for three months. Lifting is a major life activity, and the appendix treats a 20-pound restriction lasting several months as a substantial limitation, so the request should not be denied simply because the condition will last less than six months.

Worked example: uncorrected vision. An applicant whose vision is fully corrected with ordinary glasses is not disabled for that reason. If the employer screens the applicant out under an uncorrected vision standard, however, the EEOC says the employer must show the standard is job related and consistent with business necessity, and that the applicant need not be a person with a disability to challenge it (29 CFR 1630.10(b)).

The Rehabilitation Act uses the same definition. For subchapter V of the Rehabilitation Act, which includes sections 501, 503 and 504, "individual with a disability" means a person with a disability as defined in 42 U.S.C. 12102 (29 U.S.C. 705(20)(B)). The EEOC says the ADAAA's changes apply to section 501 (federal employment), 503 (federal contractors) and 504 (federal financial assistance). Federal-sector rules adopt 29 CFR 1630.2(g) through (l) (29 CFR 1614.203), and OFCCP's section 503 regulation repeats the broad-coverage rules (41 CFR 60-741.2). The EEOC's Part 1630 rules themselves apply to ADA Title I and section 501, not to sections 503 or 504.

Interacting rules. The ADA definition is not the test for other benefits. The DOL says FMLA leave is "wholly distinct" from ADA accommodation and an employer must provide leave under whichever law gives greater rights (29 CFR 825.702). Nothing in Part 1630 alters eligibility standards for state workers' compensation or disability benefit programs (29 CFR 1630.1(c)(3)), so a workers' compensation rating does not decide ADA coverage. The EEOC lists requesting a disability accommodation as protected activity, so punishing a request can be retaliation.

Records. Medical information gathered from employees must be kept on separate forms, in separate medical files, as a confidential medical record, with limited disclosure to supervisors, first aid and safety staff, and government investigators (29 CFR 1630.14(c)). Accommodation requests are personnel records that must be kept for one year from the record or action, whichever is later, and longer once a charge is filed (29 CFR 1602.14).

Where states differ. State laws may define disability more broadly; two examples, not a survey. New York's Human Rights Law defines disability as an impairment that prevents the exercise of a normal bodily function or is demonstrable by medically accepted diagnostic techniques, with no "substantially limits" requirement, though in employment it is limited to disabilities that, with reasonable accommodation, do not prevent reasonable performance of the job (N.Y. Executive Law 292(21)). California's Civil Rights Department describes a "limit a major life activity" test and says temporary conditions such as a broken bone or pneumonia qualify when they limit a major life activity, while colds, flu and minor cuts do not. Check your state agency.

FAQ: Is pregnancy a disability? The EEOC says pregnancy is not an impairment, but pregnancy-related impairments such as gestational diabetes may be disabilities if they meet a prong.

FAQ: Must the employee use the words "substantially limits"? No. Requests can be in plain language; the employer may ask for reasonable documentation when the disability is not obvious.

FAQ: Does the six-month rule exclude short conditions? Only as part of the "transitory and minor" defense to "regarded as" claims, which requires the impairment to be both.

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