On September 23, 2009, the Equal Employment Opportunity Commission (EEOC) published a notice of proposed revisions to the Americans with Disabilities Act (ADA) regulations to bring these regulations into compliance with the ADA Amendments Act of 2008, as directed by Congress.
The proposed revisions retain the current definition of "disability" – that is, (i) a physical or mental impairment that substantially limits one or more major life activities; (ii) a record of such impairment; or (iii) being regarded as having an impairment. However, according to Congress's directive the proposed revisions provide for the definition to be construed broadly: that "major life activities" are basic activities, including major bodily functions, that most people in the general population can perform with little or no difficulty.
The proposed revisions set out a specific, non-exhaustive list of major life activities, which include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, sitting, lifting, bending, speaking, breathing, learning, reading, concentrating, communicating, interacting with others and working.
The proposed revisions also set out a specific, non-exhaustive list of major bodily functions that constitute major life activities. They include 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.
Several rules of construction for "substantially limited," are proposed, including the following:
- The focus should be on whether discrimination occurred, not on
whether the individual meets the definition of disability.
- To be disabled, an individual does not have to demonstrate that
he or she has limited ability to perform activities of
"central importance to daily life."
- The term "substantially limits" should not require
extensive analysis.
Conforming with the ADA Amendments Act, the proposed revisions state that the ameliorative effects of "mitigating measures" (e.g., medication or hearing aids, use of assistive technology, auxiliary aids or services) would not be taken into account in determining whether an impairment substantially limits a major life activity. In addition, an individual who has only minor or no limitations related to an impairment because of the use of mitigating measures would still be considered disabled if the impairment would be substantially limiting without the individual's use of those mitigating measures. In addition, impairments that are episodic (e.g., epilepsy) or in remission (e.g., cancer) would constitute disabilities if they would be substantially limiting "when active."
The text of the ADA Amendments Act indicates that the expansive definition of disability will be a categorical, and less individualized, assessment of whether someone has a disability. Although the notice of proposed revisions provides that an individualized assessment would continue to be part of the analysis, it provides that certain impairments (e.g., autism, cancer, cerebral palsy, diabetes, epilepsy and AIDS or HIV) would consistently meet the definition of disability, and the individualized assessment could be conducted "quickly and easily" to reach that determination.
The revisions further propose that to be substantially limited in the major life activity of working, an individual must be unable to perform a "type of work," taking into account the nature of his or her work and job-related requirements. This new standard replaces the current standard of needing to determine whether an individual is substantially limited from working a class or broad range of jobs.
The proposed revisions to the regulations reiterate the significant change to the definition of "regarded as" disabled established by the ADA Amendments Act. They provide that an individual would be regarded as disabled if he or she is subjected to an action prohibited by the ADA (e.g., termination, demotion) on the basis of an actual or perceived impairment, regardless of whether the impairment limits or is perceived to limit a major life activity.
Implications of the Revisions to the ADA Regulations
There is likely to be an increase in the number of individuals considered to be disabled. However, the EEOC suggests that many individuals determined to be disabled are unlikely to seek any accommodations, and the accommodations that are requested can be adequately dealt with through existing employer policies or other applicable laws, such as the Family and Medical Leave Act.
The notice proposes revisions only to the definition of disability and, consistent with the ADA Amendments Act, does not alter the ADA's analysis of what constitutes a reasonable accommodation or whether the accommodation requested would present an undue hardship or pose a direct threat. Employers may still be able to challenge accommodation requests on the basis of those factors.
The EEOC is seeking comments on the proposed revisions through November 23, 2009. After reviewing all comments received, the EEOC hopes to issue final regulations in early 2010.
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.
