EEOC Releases Notice of Proposed Rulemaking for Implementation of ADAAA

On September 23, 2009, the Equal Employment Opportunity Commission (“EEOC” or “Commission”) issued a Notice of Proposed Rulemaking pursuant to the directive mandated in the Americans with Disabilities Amendments Act of 2008 (“ADAAA”).  The ADAAA amended the Americans with Disabilities Act (“ADA”) and became effective on January 1, 2009.  The ADAAA significantly broadened the definition of “disability” while rejecting the holdings in four seminal United States Supreme Court cases interpreting the ADA. 

Major Changes Under ADAAA

Pursuant to the provisions of the ADAAA and the broad directive of Congress, the proposed rule provides that the definition of “disability” shall be interpreted broadly and it considerably revises that portion of the existing regulations defining the term “substantially limits” by providing that a limitation need not “significantly” or “severely” restrict a major life activity in order to meet the standard. 

In addition to expanding the definition of “major life activities” through two non-exhaustive lists, other significant changes under the ADAAA include the following provisions within the regulations: 

• mitigating measures other than “ordinary eyeglasses or contact lenses” may not be considered when assessing whether an individual has a disability;
• an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
• the definition of “regarded as” no longer requires a showing that an employer perceived the individual to be substantially limited in a major life activity; and
• individuals covered only under the “regarded as” prong are not entitled to reasonable accommodations.

Proposed Regulations Include Extensive Examples

The EEOC proposal also includes several examples of what qualifies as a disability which, unlike EEOC guidance, will be entitled to judicial deference if finalized.  On the issue of whether an impairment “substantially limits a major life activity,” the proposal clarifies, among other things, that (1) an individual whose impairment substantially limits a major life activity need not also demonstrate a limitation in the ability to perform activities of central importance to daily life; (2) an impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability; (3) in determining whether an individual has a disability, the focus is on how a major life activity is substantially limited, not on what an individual can do in spite of an impairment. 

Specific hypothetical illustrations within the proposed rule include:

• someone with a non-short term lifting restriction that is substantially limited in lifting need not also show that he is unable to perform activities of daily living that require lifting in order to be considered substantially limited in lifting; and
• someone whose endocrine system is substantially limited due to diabetes need not also show that he is substantially limited in eating or any other major life activity.  

Moving away from the individualized inquiry which was the hallmark of an ADA case, the proposed regulations also include a non-exhaustive list of impairments that will consistently meet the definition of disability, including autism, cancer, cerebral palsy, diabetes, epilepsy, HIV or AIDS, multiple sclerosis and muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.  The regulations also include a non-exhaustive list of examples of impairments that may be disabling for some individuals but not for others.  This list includes examples related to asthma, high blood pressure, learning disabilities, back or leg impairments, certain psychiatric impairments, carpal tunnel syndrome, and hyperthyroidism. 

Other Substantive Changes

The proposed rule also clarifies that the “transitory and minor” exception for a “regarded as” claim does not establish a durational minimum for the definition of an actual or record of a disability.  This means that an impairment may substantially limit a major life activity even if it lasts, or is expected to last, for fewer than six months.  Other key changes include a provision that actions based on an impairment include actions based on symptoms of an impairment and a provision that qualification standards, employment tests, or other selection criteria based on an individual’s uncorrected vision shall not be used unless shown to be job-related for the position in question and consistent with business necessity. 

Employer Action

The proposed regulations have no force of law yet but certainly give employers an indication of the direction the EEOC is taking and what may, in fact, become final.  Interested stakeholders must submit written comments on the proposed rules to the EEOC before November 23, 2009.

In the meantime, employers should ensure that legal and human resource personnel are familiar with the proposed regulations to determine if certain internal policies and procedures may need revision, particularly with respect to procedures governing the accommodation process.  There is significant discussion within the summary findings about the modest cost of an average accommodation and the minimal incremental cost of complying with the new regulations.  It is implicit that, while the majority of the proposed rule deals with the definition of disability, the Commission will be focusing on the practical implementation of the ADAAA, including employers’ reasonable accommodation obligations.