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(e) and 36.105(e)—Has a Record of Such an Impairment

The second prong of the definition of ‘‘disability’’ under the ADA provides that an individual with a record of an impairment that substantially limits or limited a major life activity is an individual with a disability. 42 U.S.C. 12102(1)(B).

Paragraph (3) of the definition of ‘‘disability’’ in the existing title II and title III regulations states that the phrase ‘‘has a record of such an impairment’’ means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities. 28 CFR 35.104, 36.104. The NPRM proposed keeping the language in the title II and title III regulations (with minor editorial changes) but to renumber it as §§ 35.108(e)(1) and 36.105(e)(1). In addition, the NPRM proposed adding a new second paragraph stating that any individual’s assertion of a record of impairment that substantially limits a major life activity should be broadly construed to the maximum extent permitted by the ADA and should not require extensive analysis. If an individual has a history of an impairment that substantially limited one or more major life activities when compared to most people in the general population or was misclassified as having had such an impairment, then that individual will satisfy the third prong of the definition of ‘‘disability.’’ The NPRM also proposed adding paragraph (3), which provides that ‘‘[a]n individual with a record of a substantially limiting impairment may be entitled to a reasonable modification if needed and related to the past disability.’’

The Department received no comments objecting to its proposed language for these provisions and has retained it in the final rule. The Department received one comment requesting additional guidance on the meaning of these provisions. The Department notes that Congress intended this prong of the definition of ‘‘disability’’ to ensure that people are not discriminated against based on prior medical history. This prong is also intended to ensure that individuals are not discriminated against because they have been misclassified as an individual with a disability. For example, individuals misclassified as having learning disabilities or intellectual disabilities are protected from discrimination on the basis of that erroneous classification. See H.R. Rep. No. 110–730, pt. 2, at 7–8 & n.14 (2008).

This prong of the definition is satisfied where evidence establishes that an individual has had a substantially limiting impairment. The impairment indicated in the record must be an impairment that would substantially limit one or more of the individual’s major life activities. The terms ‘‘substantially limits’’ and ‘‘major life activity’’ under the second prong of the definition of ‘‘disability’’ are to be construed in accordance with the same principles applicable under the ‘‘actual disability’’ prong, as set forth in §§ 35.108(b) and 36.105(b).

There are many types of records that could potentially contain this information, including but not limited to, education, medical, or employment records. The Department notes that past history of an impairment need not be reflected in a specific document. Any evidence that an individual has a past history of an impairment that substantially limited a major life activity is all that is necessary to establish coverage under the second prong. An individual may have a ‘‘record of’’ a substantially limiting impairment—and thus establish coverage under the ‘‘record of’’ prong of the statute—even if a covered entity does not specifically know about the relevant record. For the covered entity to be liable for discrimination under the ADA, however, the individual with a ‘‘record of’’ a substantially limiting impairment must prove that the covered entity discriminated on the basis of the record of the disability.

Individuals who are covered under the ‘‘record of’’ prong may be covered under the first prong of the definition of ‘‘disability’’ as well. This is because the rules of construction in the ADA Amendments Act and the Department’s regulations provide that an individual with an impairment that is episodic or in remission can be protected under the first prong if the impairment would be substantially limiting when active. See §§ 35.108(d)(1)(iv); 36.105(d)(1)(iv). Thus, an individual who has cancer that is currently in remission is an individual with a disability under the ‘‘actual disability’’ prong because he has an impairment that would substantially limit normal cell growth when active. He is also covered by the ‘‘record of’’ prong based on his history of having had an impairment that substantially limited normal cell growth.

Finally, these provisions of the regulations clarify that an individual with a record of a disability is entitled to a reasonable modification currently needed relating to the past substantially limiting impairment. In the legislative history, Congress stated that reasonable modifications were available to persons covered under the second prong of the definition. See H.R. Rep. No. 110–730, pt. 2, at 22 (2008) (‘‘This makes clear that the duty to accommodate . . . arises only when an individual establishes coverage under the first or second prong of the definition.’’). For example, a high school student with an impairment that previously substantially limited, but no longer substantially limits, a major life activity may need permission to miss a class or have a schedule change as a reasonable modification that would permit him or her to attend follow-up or monitoring appointments from a health care provider.