The Equal Employment Opportunity Commission (EEOC) published a Notice of Proposed Rulemaking in the Sept. 23 Federal Register that contains sweeping changes to its regulations and interpretive guidance of the Americans with Disabilities Act (ADA).
The much-anticipated notice represents a major step toward the implementation of the ADA Amendments Act of 2008. The regulations will be reviewed and finalized following a 60-day public comment period. An implementation date has not been set.
The overall intent of the Amendments Act is to make it easier for employees and applicants who allege employment-related disability discrimination to establish that they are disabled as defined by federal law.
The Amendments Act retains the ADA’s basic definition of a disability as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, the proposed regulations will change how these statutory terms are interpreted in several important ways.
Key Recommendations
Under key proposed revisions:
1. The definition of disability is interpreted much more broadly than it is under existing regulations. The threshold for establishing whether an individual is “substantially limited” in a major life activity is lowered; an impairment will not need to “significantly” or “severely” restrict a major life activity in order to meet the standard.
2. The terms “condition, manner, or duration” under which a major life activity is performed will be removed.
3. The definition of “major life activities” is expanded by providing two “non-exhaustive” lists of qualifying activities and functions:
• activities such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working.
• major bodily functions, such as functions of the immune system, special sense organs, and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. Qualifying conditions include cancer, epilepsy, HIV, and AIDS.
4. Consideration of the effect of mitigating measures will be eliminated, other than eyeglasses or contact lenses, in assessing whether an individual has a disability.
5. An impairment that is episodic or in remission will be considered a disability if it substantially limits a major life activity when active.
6. The definition of “regarded as having such an impairment” will no longer require evidence that an employer perceived the individual to be substantially limited in a major life activity. Instead, an applicant or employee who is subject to an action prohibited by the ADA (e.g., failure to hire, denial of promotion, termination) because of an actual or perceived impairment, or actions based on symptoms of an impairment, will meet the “regarded as” definition of disability, unless the impairment is both transitory and minor.
Employment law attorneys noted that the proposed regulatory changes provide some relief for employers by clarifying that individuals covered only under “regarded as” disabled provisions are not entitled to reasonable accommodations. In addition, the fact that an action may have been based on an impairment does not necessarily mean that an employer has engaged in unlawful discrimination. For example, an individual still needs to be qualified for the job he or she holds or desires.
However, limits will be placed on employers’ ability to use selection criteria in employment decisions by prohibiting the use of qualification standards, employment tests and similar methods.
The Amendments Act states that an impairment that is episodic or in remission meets the definition of disability if it would substantially limit a major life activity when active. However, the proposed regulation says that temporary, non-chronic impairments of short duration with little or no residual effects usually will not be considered disabilities.
Chronic, episodic impairments can be a disability even if symptoms or effects would only substantially limit a major life activity when active. Examples of impairments that are episodic include epilepsy, hypertension, multiple sclerosis, asthma, diabetes, major depression, bipolar disorder and schizophrenia.
Resources and References
1. Equal Employment Opportunity Commission: www.eeoc.gov/ada
2. Federal Register: http:edocket.access. gpo.gov/2009/E9-22840.htm (Notice of Proposed Rulemaking)
3. HRHero: www.HRHero.com
4. Jackson Lewis, a national firm specializing in employment law: www.Jacksonlewis.com
