The Equal Employment Opportunity Commission (EEOC) has published a question and answer guide addressing the proposed regulations drafted in response to the Americans with Disabilities Act (ADA) Amendments Act of 2008 (ADAAA). On Wednesday, the EEOC approved the notice of proposed rulemaking (NPRM) by a vote of 2-1 along party lines. Text of the proposed regulations is slated for publication in the Federal Register next week, to be followed by a 60-day public comment period.
The ADAAA, which went into effect on January 1, 2009, significantly expands the definition of “disability” under the ADA, allowing more individuals to fall under the ADA’s protection. Although the ADAAA, like the ADA, defines “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, the ADAAA changes how each of these components of the definition should be interpreted. According to a Notice issued by the EEOC, the ADAAA:
- directs EEOC to revise that portion of its regulations defining the term "substantially limits";
- expands the definition of "major life activities" by including two non-exhaustive lists:
- the first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating);
- the second list includes major bodily functions (e.g., "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions");
- states that mitigating measures other than "ordinary eyeglasses or contact lenses" shall not be considered in assessing whether an individual has a disability;clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
- changes the definition of "regarded as" so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead says that an applicant or employee is "regarded as" disabled if he or she is subject to an action prohibited by the ADA (e.g., failure to hire or termination) based on an impairment that is not transitory and minor;
- provides that individuals covered only under the "regarded as" prong are not entitled to reasonable accommodation.
As stated in an EEOC press release, the proposed rules emphasize that the definition of disability “must be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA, and should not require extensive analysis.” In this release, Acting EEOC Vice Chair Christine Griffin says that the regulations “will shift the focus of the courts away from further narrowing the definition of disability, and put it back where Congress intended when the ADA was enacted in 1990.”
The Q&A document on the proposed regulations provides guidance on a number of ADAAA-related questions, including what constitutes a “major life activity,” what causes an impairment to “substantially limit” a major life activity, and what are mitigating measures in these circumstances. Notably, the guidance states that the proposed regulations include a non-exhaustive list of impairments that would automatically be considered a disability under the ADA, such as cancer, autism, diabetes, epilepsy, HIV/AIDS, major depression, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia. Additionally, the Q&A describes how the proposed rules would make it easier for an individual to be considered substantially limited in the major life activity of “working.” According to the proposed rules, an impairment substantially limits an individual’s ability to work when it substantially limits an individual’s ability to perform, or to meet the qualifications for, a “type of work,” as opposed to a “class” or “broad range” of jobs, which has been the benchmark under the current ADA regulations.
Once the EEOC’s notice of proposed rulemaking is published in the Federal Register, the public will have 60 days to submit comments. After the EEOC evaluates these comments, a final rule will be drafted and sent to the Office of Management and Budget (OMB) and other federal agencies for coordination and approval, and eventually published in the Federal Register.