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)(2) and 36.105(a)(2) Definition of ‘‘disability’’—Rules of Construction

In the NPRM, the Department proposed §§ 35.108(a)(2) and 36.105(a)(2), which set forth rules of construction on how to apply the definition of ‘‘disability.’’ Proposed §§ 35.108(a)(2)(i) and 36.105(a)(2)(i) state that an individual may establish coverage under any one or more of the prongs in the definition of ‘‘disability’’—the ‘‘actual disability’’ prong in paragraph (a)(1)(i), the ‘‘record of’’ prong in paragraph (a)(1)(ii) or the ‘‘regarded as’’ prong in paragraph (a)(1)(iii). See §§ 35.108(a)(1)(i) through (iii); 36.105(a)(1)(i) through (iii). The NPRM’s inclusion of rules of construction stemmed directly from the ADA Amendments Act, which amended the ADA to require that the definition of ‘‘disability’’ be interpreted in conformance with several specific directives and an overarching mandate to ensure ‘‘broad coverage . . . to the maximum extent permitted by the terms of [the ADA].’’ 42 U.S.C. 12102(4)(A).

To be covered under the ADA, an individual must satisfy only one prong. The term ‘‘actual disability’’ is used in these rules of construction as shorthand terminology to refer to an impairment that substantially limits a major life activity within the meaning of the first prong of the definition of ‘‘disability.’’ See §§ 35.108(a)(1)(i); 36.105(a)(1)(i). The terminology selected is for ease of reference. It is not intended to suggest that an individual with a disability who is covered under the first prong has any greater rights under the ADA than an individual who is covered under the ‘‘record of’’ or ‘‘regarded as’’ prongs, with the exception that the ADA Amendments Act revised the ADA to expressly state that an individual who meets the definition of ‘‘disability’’ solely under the ‘‘regarded as’’ prong is not entitled to reasonable modifications of policies, practices, or procedures. See 42 U.S.C. 12201(h).

Proposed §§ 35.108(a)(2)(ii) and 36.105(a)(2)(ii) were intended to incorporate Congress’s expectation that consideration of coverage under the ‘‘actual disability’’ and ‘‘record of disability’’ prongs of the definition of ‘‘disability’’ will generally be unnecessary except in cases involving requests for reasonable modifications. See 154 Cong. Rec. H6068 (daily ed. June 25, 2008) (joint statement of Reps. Steny Hoyer and Jim Sensenbrenner). Accordingly, these provisions state that, absent a claim that a covered entity has failed to provide reasonable modifications, typically it is not necessary to rely on the ‘‘actual disability’’ or ‘‘record of’’ disability prongs. Instead, in such cases, the coverage can be evaluated exclusively under the ‘‘regarded as’’ prong,’’ which does not require a showing of an impairment that substantially limits a major life activity or a record of such an impairment. Whether or not an individual is challenging a covered entity’s failure to provide reasonable modifications, the individual may nevertheless proceed under the ‘‘actual disability’’ or ‘‘record of’’ prong. The Department notes, however, that where an individual is challenging a covered entity’s failure to provide effective communication, that individual cannot rely solely on the ‘‘regarded as prong’’ because the entitlement to an auxiliary aid or service is contingent on a disability-based need for the requested auxiliary aid or service. See 28 CFR 35.160(b), 28 CFR 36.303(c).

The Department received no comments objecting to these proposed rules of construction. The final rule retains these provisions but renumbers them as paragraphs (ii) and (iii) of §§ 35.108(a)(2) and 36.105(a)(2) and replaces the reference to ‘‘covered entity’’ in the title III regulatory text with ‘‘public accommodation.’’

The Department has added a third rule of construction at the beginning of §§ 35.108(a)(2) and 36.105(a)(2), numbered §§ 35.108(a)(2)(i) and 36.105(a)(2)(i). Closely tracking the amended statutory language, these provisions state that ‘‘[t]he definition of disability shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA.’’ See 42 U.S.C. 12102(4)(A). This principle is referenced in other portions of the final rule, but the Department believes it is important to include here underscore Congress’s intent that it be applied throughout the determination of whether an individual falls within the ADA definition of ‘‘disability.’’