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)(3) and 36.105(d)(3)—Condition, Manner, or Duration

Overview. Proposed §§ 35.108(d)(3) and 36.105(d)(3), both titled ‘‘Condition, manner[,] and duration,’’ addressed how evidence related to condition, manner, or duration may be used to show how impairments substantially limit major life activities. These principles were first addressed in the preamble to the 1991 rule. At that time, the Department noted that ‘‘[a] person is considered an individual with a disability . . . when the individual’s important life activities are restricted as to the conditions, manner, or duration under which they can be performed in comparison to most people.’’ 56 FR 35544, 35549 (July 26, 1991); see also S. Rep. No. 101–116, at 23 (1989).

These concepts were affirmed by Congress in the legislative history to the ADA Amendments Act: ‘‘We particularly believe that this test, which articulated an analysis that considered whether a person’s activities are limited in condition, duration and manner, is a useful one. We reiterate that using the correct standard—one that is lower than the strict or demanding standard created by the Supreme Court in Toyota—will make the disability determination an appropriate threshold issue but not an onerous burden for those seeking accommodations or modifications. At the same time, plaintiffs should not be constrained from offering evidence needed to establish that their impairment is substantially limiting.’’ 154 Cong. Rec. S8346 (Sept. 11, 2008). Noting its continued reliance on the functional approach to defining disability, Congress expressed its belief that requiring consistency with the findings and purposes of the ADA Amendments Act would ‘‘establish[ ] an appropriate functionality test for determining whether an individual has a disability.’’ Id. While condition, manner, and duration are not required factors that must be considered, the regulations clarify that these are the types of factors that may be considered in appropriate cases. To the extent that such factors may be useful or relevant to show a substantial limitation in a particular fact pattern, some or all of them (and related facts) may be considered, but evidence relating to each of these factors often will not be necessary to establish coverage.

In the NPRM, proposed §§ 35.108(d)(3)(i) and 35.105(d)(3)(i) noted that the rules of construction at §§ 35.108(d)(1) and 35.105(d)(1) should inform consideration of how individuals are substantially limited in major life activities. Sections 35.108(d)(3)(ii) and 36.105(d)(3)(ii) provided examples of how restrictions on condition, manner, or duration might be interpreted and also clarified that the negative or burdensome side effects of medication or other mitigating measures may be considered when determining whether an individual has a disability. In §§ 35.108(d)(3)(iii) and 36.105(d)(3)(iii), the proposed language set forth a requirement to focus on how a major life activity is substantially limited, rather than on the ultimate outcome a person with an impairment can achieve.

The Department received comments on the condition, manner, or duration provision from advocacy groups for individuals with disabilities, from academia, from education and testing entities, and from interested individuals. Several advocacy organizations for individuals with disabilities and private individuals noted that the section title’s heading was inconsistent with the regulatory text and sought the replacement of the ‘‘and’’ in the section’s title, ‘‘Condition, manner, and duration,’’ with an ‘‘or.’’ Commenters expressed concern that retaining the ‘‘and’’ in the heading title would be inconsistent with congressional intent and would incorrectly suggest that individuals are subject to a three part test and must demonstrate that an impairment substantially limits a major life activity with respect to condition, manner, and duration. The Department agrees that the ‘‘and’’ used in the title of the proposed regulatory provision could lead to confusion and a misapplication of the law and has revised the title so it now reads ‘‘Condition, manner, or duration.’’ Consistent with the regulatory text, the revised heading makes clear that any one of the three descriptors—‘‘condition,’’ ‘‘manner,’’ or ‘‘duration’’—may aid in demonstrating that an impairment substantially limits a major life activity or a major bodily function.