28 CFR Parts 35 and 36 Amendment of ADA Title II and Title III Regulations To Implement ADA Amendments Act of 2008 - Final Rule

Sections 35.108(a)(1) and 36.105(a)(1) Definition of ‘‘disability’’—General

In the ADA, Congress originally defined ‘‘disability’’ as ‘‘(A) a physical or mental impairment that substantially limits one or more major life activities of an individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.’’ Public Law 101–336, sec. 3 (1990). This three-part definition—the ‘‘actual,’’ ‘‘record of,’’ and ‘‘regarded as’’ prongs—was modeled after the definition of ‘‘handicap’’ found in the Rehabilitation Act of 1973. H.R. Rep. No. 110–730, pt. 2, at 6 (2008). The Department’s 1991 title II and title III ADA regulations reiterate this three-part basic definition as follows:

Disability means, with respect to an individual,

• a physical or mental impairment that substantially limits one or more of the major life activities of such individual;

• a record of such an impairment; or

• being regarded as having such an impairment.

56 FR 35694, 35717 (July 26, 1991); 56 FR 35544, 35548 (July 26, 1991).

While the ADA Amendments Act did not amend the basic structure or terminology of the original statutory definition of ‘‘disability,’’ the Act revised the third prong to incorporate by reference two specific provisions construing this prong. 42 U.S.C. 12102(3)(A)–(B). The first statutory provision clarified the scope of the ‘‘regarded as’’ prong by explaining that ‘‘[a]n individual meets the requirement of ‘being regarded as having such an impairment’ if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.’’ 42 U.S.C. 12102(3)(A). The second statutory provision provides an exception to the ‘‘regarded as’’ prong for impairments that are both transitory and minor. A transitory impairment is defined as ‘‘an impairment with an actual or expected duration of 6 months or less.’’ 42 U.S.C. 12102(3)(B). In the NPRM, the Department proposed revising the ‘‘regarded as’’ prong in §§ 35.108(a)(1)(iii) and 36.105(a)(1)(iii) to reference the regulatory provisions that implement 42 U.S.C. 12102(3). The NPRM proposed, at §§ 35.108(f) and 36.105(f), that ‘‘regarded as’’ having an impairment would mean that the individual has been subjected to an action prohibited by the ADA because of an actual or perceived impairment that is not both ‘‘transitory and minor.’’

The first proposed sentence directed that the meaning of the ‘‘regarded as prong’’ shall be understood in light of the requirements in §§ 35.108(f) and 36.105(f). The second proposed sentence merely provided a summary restatement of the requirements of §§ 35.108(f) and 36.105(f). The Department received no comments in response to this proposed language. Upon consideration, however, the Department decided to retain the first proposed sentence but omit the second as superfluous. Because the first sentence explicitly incorporates and directs the public to the requirements set out in §§ 35.108(f) and 36.105(f), the Department believes that summarizing those requirements here is unnecessary. Accordingly, in the final rule, §§ 35.108(a)(1)(iii) and 36.105(a)(1)(iii) simply reference paragraph (f) of the respective section. See also, discussion in the Guidance and Section-by-Section analysis of §§ 35.108(f) and 36.105(f), below.