Revisions to the Americans with Disabilities Act

EEOC Publishes Proposed Revisions to Americans with Disabilities Act Regulations

By Justin L. Furrow

The Equal Employment Opportunity Commission (“EEOC”) has just published proposed revisions to its Americans with Disabilities Act (“ADA”) regulations and interpretive guidance, as required by the ADA Amendments Act of 2008 (“ADAAA”).  The ADAAA embodies Congress’s stated desire to restore the protections the ADA was originally intended to provide and to invalidate certain court decisions and EEOC regulations that had narrowed the ADA’s coverage.

Although the definition of “disability”¹ remains unchanged, the proposed regulations explain that the scope of “disability” has been dramatically broadened so as to “make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.”  Specifically, the proposed regulations:

• Provide a non-exhaustive list of physical and mental impairments, which includes any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems and any mental or physiological disorder, such as an intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disability.
   
• Add sitting, reaching, and interacting with others to the ADAAA’s non-exhaustive list of major life activities.
   
• Add genitourinary, cardiovascular, hemic, lymphatic, and musculoskeletal functions and functions of the special sense organs and skin to the ADAAA’s non-exhaustive list of major bodily functions.
   
• Explain that major life activities are those basic activities and major bodily functions that most people in the general population can perform with little or no difficulty.
   
• Clarify that an impairment is a disability if it “substantially limits” the ability of an individual to perform a major life activity as compared to most people in the general population, thereby deleting the prior requirement of a significant or severe restriction..
   
• Explain that an individual is not required to demonstrate a limitation in the ability to perform activities of central importance to daily life to establish that he or she has a substantially limiting impairment.
   
• Encourage determining whether a person is disabled by using a “common-sense standard” instead of scientific or medical evidence..
   
• Make clear that a substantially limiting impairment that lasts less than six months may be a disability unless it is temporary, non-chronic and has little or no residual effects (e.g. common cold or flu, broken bone that is expected to heal normally, sprained joint).
   
• Provide that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
   
• Provide that mitigating measures other than “ordinary eyeglasses or contact lenses” should not be considered when determining whether a person is disabled.
   
• Explain that an individual is disabled under the ADA if an impairment would be substantially limiting without a mitigating measure, even if the individual has experienced no limitations.
   
• Provide examples of impairments that will “consistently meet the definition of disability,” including deafness, blindness, intellectual disability, partially or completely missing limbs, mobility impairments requiring the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV or AIDS, multiple sclerosis and muscular dystrophy, and major depression, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, or schizophrenia.
   
• Clarify that an individual with a disability will usually be substantially limited in another major life activity, therefore making it unnecessary to consider whether the individual is substantially limited in the major life activity of working.
   
• Explain 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.
   
• Explain that the “regarded as” definition only requires that the individual be subjected to a prohibited action because he or she has been regarded as having an impairment, regardless of whether the impairment is regarded to be substantially limiting.
   
• Provide that a prohibited action based on actual or perceived impairment includes an action based on symptoms of an impairment or based on medication or any other mitigating measure used to treat an impairment.
   
• Clarify that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation and that the ADA does not provide a cause of action for reverse disability discrimination.
   

The proposed regulations are open for public comment until November 23, 2009.  If you have any questions or concerns about the proposed regulations, please contact a member of our Labor and Employment Group.