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(d)(1)(ix) and 36.105(d)(1)(ix)—Impairment That Lasts Less Than Six Months Can Still Be a Disability Under First Two Prongs of the Definition

In §§ 35.108(d)(1)(ix) and 36.105(d)(1)(ix), the NPRM proposed rules of construction noting that the six-month ‘‘transitory’’ part of the ‘‘transitory and minor’’ exception does not apply to the ‘‘actual disability’’ or ‘‘record of’’ prongs of the definition of ‘‘disability.’’ Even if an impairment may last or is expected to last six months or less, it can be substantially limiting.

The ADA as amended provides that the ‘‘regarded as’’ prong of the definition of ‘‘disability’’ does ‘‘not apply to impairments that are [both] transitory and minor.’’ 42 U.S.C. 12102(3)(B). ‘‘Transitory impairment’’ is defined as ‘‘an impairment with an actual or expected duration of six months or less.’’ Id. The statute does not define the term ‘‘minor.’’ Whether an impairment is both ‘‘transitory and minor’’ is a question of fact that is dependent upon individual circumstances. The ADA as amended contains no such provision with respect to the first two prongs of the definition of ‘‘disability’’—‘‘actual disability,’’ and ‘‘record of’’ disability. The application of the ‘‘transitory and minor’’ exception to the ‘‘regarded as’’ prong is addressed in §§ 35.108(f) and 36.105(f).

The Department received two comments on this proposed language. One commenter recommended that the Department delete this language and ‘‘replace it with language clarifying that if a condition cannot meet the lower threshold of impairment under the third prong, it cannot meet the higher threshold of a disability under the first and second prongs.’’ The Department declines to modify these provisions because the determination of whether an individual satisfies the requirements of a particular prong is not a comparative determination between the three means of demonstrating disability under the ADA. The Department believes that the suggested language would create confusion because there are significant differences between the first two prongs and the third prong. In addition, the Department believes its proposed language is in keeping with the ADA Amendments Act and the supporting legislative history.

The other commenter suggested that the Department add language to provide greater clarity with respect to the application of the transitory and minor exception to the ‘‘regarded as prong.’’ The Department does not believe that additional language should be added to these rules of construction, which relate only to whether there is a six month test for the first two prongs of the definition. As discussed below, the Department has revised both the regulatory text at §§ 35.108(f) and 36.105(f) and its guidance on the application of the ‘‘transitory and minor’’ exception to the ‘‘regarded as’’ prong. See discussion below.