EEOC Proposes Revised ADA Proposed Regulations

To comply with the ADA Amendments Act of 2008 (Amendments Act), the United States Equal Employment Opportunity Commission (EEOC) has published proposed revisions to its employment regulations under the Americans with Disabilities Act (ADA). These proposed regulations (which include revisions to the EEOC's interpretive guidance in the appendix) focus on the definition of "disability" under the ADA and significantly broaden it. In other words, many more people will be found to have a disability under the new regulations and the Amendments Act than has been the case under the existing regulations and the original version of the ADA. For a discussion of the Amendments Act, see "Amendments to ADA Expand Coverage."

The EEOC will accept comments on the proposed regulations through November 23, 2009. After considering the comments, it will issue the final regulations.

Disability Definition

One prong of the definition of "disability" continues to be a physical or medical impairment that substantially limits one or more major life activities. The proposed regulations define major life activities as those basic activities, including major bodily functions, that most people in the general population can perform with little or no difficulty. The proposed regulations contain a list of examples. This list adds "interacting with others" to the items that were specified in the Amendments Act: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.

Major bodily functions can be considered major life activities. The list of examples of major bodily functions in the proposed regulations, which goes beyond the list in the Amendments Act itself, includes the functions of the immune system, special sense organs and skin; normal cell growth; and the digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal and reproductive functions.

Substantial Limitation

The determination of whether a major life activity is substantially limited is based on a comparison of the individual's ability to perform the activity to that of most people in the general population. The proposed regulations' only guidance as to how this comparison is to be performed is a statement that a common-sense standard should be used, without resort to scientific or medical evidence. An impairment need not prevent or significantly or severely restrict an individual from performing a major life activity in order to be considered a disability. A person who is substantially limited in one major life activity does not need to show that he is limited in the ability to perform activities of central importance to daily life. For example, a person with a 20-pound lifting restriction is substantially limited in lifting and need not show that he is substantially limited in common activities that require lifting.

To be a disability, the substantial limitation of a major life activity need not be permanent. Even impairments that are expected to last for fewer than six months can meet the standard.

Even though the proposed regulations theoretically preserve the fundamental ADA principle that whether an individual has a disability is to be determined on a case-by-case analysis in light of the specific facts, the proposed regulations identify certain impairments that will "consistently meet the definition of disability." These include deafness, blindness, intellectual disability, missing limbs, mobility impairments requiring the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV or AIDS, multiple sclerosis, muscular dystrophy, and psychiatric disorders such as major depression, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia. The list is not exhaustive.

The proposed regulations also list examples of impairments that may be disabling for some individuals but not for others. Such impairments include asthma, high blood pressure, learning disabilities, back or leg impairments, psychiatric impairments such as panic disorder, anxiety disorder or forms of depression other than major depression, carpal tunnel syndrome and hyperthyroidism. However, whether an impairment is a disability in a particular case should not demand an extensive analysis and doubts should be resolved in favor of broad coverage of the ADA.

There is a short paragraph discussing impairments that are usually not disabilities. Temporary, non-chronic impairments of short duration with little or no residual effects (such as the common cold, seasonal or common influenza, a sprained joint, minor and nonchronic gastrointestinal disorders, and a broken bone that is expected to heal completely) are usually not disabilities.

Major Life Activity of Working

The proposed regulations contain an extensive discussion of what constitutes a substantial limitation of the major life activity of working. The current regulations and case law provide that the inability to work a particular job is not a disability unless the employee is unable to perform a class of jobs or a broad range of jobs in various classes. In a significant change, the proposed regulations provide that an impairment substantially limits the major life activity of working if it substantially limits an individual's ability to perform, or to meet the qualifications for, the type of work at issue. Type of work means the job the individual has been performing and jobs with similar qualifications or requirements that the individual would be substantially limited in performing because of the impairment. This seemingly circular provision comes close to saying that the inability to do one's own job is itself a disability.

Disregard of Mitigating Measures

The extent of impairment is to be determined without regard to mitigating measures other than ordinary eye glasses or contact lenses. Mitigating measures that may not be considered include things such as medications, hearing aids, assistive technology, reasonable accommodation, "learned behavioral or adaptive neurological modifications," and surgical interventions that do not permanently eliminate an impairment.

Impairments That Are Episodic or In Remission

An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

Regarded as Having a Disability

As broad as the concept of substantial limitation of a major life activity now is, a plaintiff will not have to meet even this low threshold in a case in which an employee or applicant asserts that he was discriminated against because he was regarded as having a disability. It will now be enough for a plaintiff to show that the employer took adverse action against her because of an actual or perceived impairment, so long as the impairment is not transitory and minor. It will not be necessary to show that the impairment limits or is perceived to limit a major life activity. This is a significant change in the law. In the past, many lawsuits were won by employers because even though the employer may have known or believed the employee to have an impairment, the employer did not perceive that impairment to substantially limit a major life activity. This defense theory will no longer be available.

In addition, an employer who takes forbidden action because of the mitigating measures (such as an anti-seizure medicine) used by the employee or applicant or the symptoms of the impairment will be considered to have regarded the individual as having a disability (and, therefore, an impairment) even if the employer did not know or perceive what the impairment was. In fact, this provision might apply even if the employer did not know that there was any impairment at all (for example, if a decision was based on what the employer thought was only a personality trait but was actually a symptom of an impairment).

Thus, all the elements of proving a disability (an impairment that substantially limits a major life activity) come into play only when there is a claim of failure to accommodate or a claim of discrimination on the basis of a record of disability. Employees who do not actually have an impairment that satisfies the complete definition of disability but are incorrectly regarded as having such an impairment are not entitled to an accommodation.

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The proposed regulations go even farther than the Amendments Act to remove from consideration the issue of whether an employee has a disability that entitles him to the protections of the ADA. Under the proposed regulations, employers will need to make reasonable accommodation for more employees than has previously been the case and will have to defend their actions against more disability discrimination claims. The proposed regulations make it more important than ever that employers train managers and human resource personnel about how to respond to accommodation requests and how to avoid disability discrimination claims.