On September 23, 2009, the Equal Employment Opportunity Commission (EEOC) published in the Federal Register a long-awaited Notice of Proposed Rulemaking (NPRM) regarding the ADA Amendments Act of 2008 (ADAAA). The ADAAA, effective since January 1, 2009, expands the definition of "disability" under the Americans with Disabilities Act (ADA), overrules several previous EEOC regulations and United States Supreme Court decisions regarding the ADA which proponents of the ADAAA said unreasonably restricted the ADA's coverage. The EEOC's NPRM sets forth proposed regulations and interpretive guidance regarding the ADAAA, and also allows the public a 60-day period within which comments regarding the proposed regulations can be submitted to the EEOC.

It is clear that the EEOC has embraced the concept that the ADA should be construed in favor of broad coverage "to the maximum extent permitted. To that end, the newly-issued proposed regulations greatly expand the definition of "disability" under the ADAAA and the original ADA, in order to make it easier for an individual to establish that he or she has a disability. According to the EEOC, a case brought under the ADA should not focus on whether the individual has a disability, but whether the individual has suffered any discrimination.

Under the proposed regulations, the scope of a "disability" is expanded substantially. For instance, the definition of a "major life activity" is broadened to include "major bodily functions," such as breathing, immune system function, cell reproduction, sensing functions, and digestive and bowel functions.  Moreover, the proposed regulations make it easier for an individual to establish that he or she is "substantially limited" in such a "major life activity."  An impairment will now be considered 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. Importantly, in order to be considered a "disability," an impairment does not need to prevent or even significantly restrict the individual from performing a major life activity in order to be considered a disability.

However, under the proposed regulations, a temporary or chronic impairment of a short duration - for instance, the flu, a sprained joint or broken bone, or a non-chronic digestive or gastrointestinal disorder - usually will not be considered to substantially limit a &"major life activity." Moreover, episodic conditions that impose only minor limitations typically will not meet the definition of disability. On the other hand, employers should be aware that even if a disorder lasts or is expected to last for less than six months, it is possible that such an impairment can still substantially limit a major life activity.

For the first time, in the proposed regulations, the EEOC lists examples of impairments that will consistently meet the definition of a disability.  Such impairments include, but are not limited to:

  • Blindness
  • Deafness
  • Intellectual disabilities
  • Partially or completely missing limbs
  • Mobility impairments requiring the use of a wheelchair
  • Autism
  • Cancer
  • Cerebral palsy
  • Diabetes
  • Epilepsy
  • HIV/AIDS
  • Multiple sclerosis
  • Muscular dystrophy
  • Major depression
  • Bipolar disorder
  • Post-traumatic stress disorder
  • Obsessive-compulsive disorder
  • Schizophrenia

An impairment that is episodic or in remission will be considered to be a disability if it would substantially limit a major life activity when the condition is active (for instance, bipolar disorder or epilepsy).

The proposed regulations also provide that any determination of whether an individual has an impairment which substantially limits a major life activity will be based upon a "common-sense assessment," comparing the individual's ability to perform a specific major life activity with the ability of most people in the general population. The proposed regulations also expand the definition of what constitutes a "major life activity" under the ADA. The list of such activities in the new regulations includes caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working, all of which were specifically included in the text of the ADAAA. The new regulations also add three additional major life activities not included in the ADAAA: sitting, reaching and interacting with others.

Many individuals attempting to assert a claim under the ADA allege that they were substantially limited in the major life activity of working.  Under the proposed regulations, the EEOC's interpretation of what it means to be substantially limited in the major life activity of working is also significantly altered.  Now, "an impairment substantially limits the major life activity of working if it substantially limits an individual's ability to perform, or meet the qualifications for, the type of work at issue." Importantly, this new definition replaces the former requirement under the ADA that an individual be limited from working in a "broad range" of jobs in order to be substantially limited in the major life activity of working.

Additionally, under the new proposed regulations, the ameliorative effects of mitigating measures may not be considered in determining whether an impairment substantially limits a major life activity. Furthermore, an impairment that is episodic or in remission will be considered a disability under the proposed regulations if it would substantially limit a major life activity when the impairment is active.  This represents a significant departure from how such an impairment would have been evaluated under the ADA.  Such a change means that under the ADAAA, an individual's use of medication, prosthetics, hearings aids, cochlear implants, mobility devices, or medical supplies, equipment or appliances, among other items, will not prevent such an individual from successfully claiming that they have an impairment that substantially limits a major life activity.  Only the effects of ordinary eye glasses may be considered when determining if an individual is substantially limited in the major life activity of seeing.

Finally, in the only modification to the ADA favorable to employers, the proposed regulations make it clear that individuals covered by the ADA only because they are "regarded as" having a disability are not entitled to any reasonable accommodation.  Previously, if an employer regarded an employee as having a disability, the employee was often granted accommodations regardless of whether or not the employee had a disability that substantially limited his or her major life activity. Under the proposed regulations, which closes this loophole, an individual will be regarded as disabled only if he or she is subjected to an adverse employment action because of an actual or perceived impairment, whether or not the impairment limits or is perceived to limit a major life activity, unless the impairment is minor and lasts less than six months.

Written comments from interested parties regarding the proposed regulations can be submitted to the EEOC no later than November 26, 2009. The full text of the proposed regulations, as well as the comment form can be accessed here.

The EEOC is not likely to modify the proposed regulations significantly, and in all likelihood they will become law.  Therefore, human resources professionals should become knowledgeable about the new requirements and the modifications to the ADA contained in the proposed regulations.  Employers should also review any decisions made denying a request for a reasonable accommodation since the beginning of 2009.  Certain impairments that might not have met the definition of a disability prior to the implementation of these new regulations may well be considered disabilities now.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.