Home > Legal Updates >

EEOC Takes First Steps to Overhaul ADA Regulations

The U.S. Equal Employment Opportunity Commission on June 17, 2009, voted to revise its regulations on the Americans with Disabilities Act (“ADA”) to reflect changes made by the ADA Amendments Act (“ADAAA”) of 2008.  The ADAAA, which became effective on January 1, 2009, makes it easier for individuals seeking protection under the ADA to establish that they have a disability. 

The Commission’s new proposed regulations now must be reviewed by other agencies, including the Department of Justice and the Office of Management and Budget.  Once their review is completed, the proposal returns to the EEOC for further review and release for public comment.  No timetable has been set.

In December, ahead of the ADAAA’s effective date, the EEOC tried but failed to approve proposed regulations to reflect the ADAAA changes.  The agency’s Office of Legal Counsel (OLC) then coordinated with other EEOC sections, including the Office of General Counsel and the Office of Field Programs, to arrive at the new proposed regulations.  While they have not been made public, EEOC assistant legal counsel and director of OLC’s ADA policy division Christopher Kuczynski issued a written statement outlining the key provisions of the proposed regulations (see EEOC June 17 Statement of Christopher Kuczynski).  Based on that statement, employers can begin to see how the ADAAA will change ADA analysis.

Examples Included in Text of Regulations

The new approach of including examples in the text is intended to increase the likelihood that courts will defer to the EEOC’s interpretation of the law.  It would increase the importance of employers becoming familiar with the specific examples in the regulations, if adopted.

Major Life Activities and Major Bodily Functions Recognized

The ADAAA expanded the list of “major life activities” and clarified that these included “major bodily functions.”  The proposal cites activities and bodily functions expressly referenced in the ADAAA, but adds others to the regulations’ non-exhaustive list.  These include bending, reading and communicating, three activities not previously recognized by the EEOC as “major life activities.”

Concept of “Substantially Limits” Revised

The proposal significantly revises the standard for determining whether an impairment substantially limits a major life activity.  The proposal states that to be “substantially limiting,” an impairment need not severely restrict or significantly restrict performance of a major life activity.  It remains to be seen what level of “limitation” will be sufficient to satisfy the “substantially limits” standard.  However, temporary, non-chronic impairments of short duration with little or no residual effects, such as a cold, seasonal or common influenza, a sprained joint, or a broken bone that is expected to heal completely usually will not substantially limit a major life activity, according to the proposal.  While “transitory and minor” impairments – those lasting less than six months – may not be the basis of a “regarded as” claim, they may be substantially limiting. 

Some Impairments Obviously Meet “Substantially Limits” Test

Previously, most viewed the ADA as inherently precluding a “per se” list of impairments that are always disabilities.  The proposal appears to move closer to developing such a list by identifying examples of impairments that are “obviously” substantially limiting. This virtually guarantees that individuals with such impairments will always be within the class of people protected as “disabled.”  Impairments falling in this category range from blindness, deafness, intellectual disabilities (formerly “mental retardation”) to major depression, bipolar disorder, post-traumatic stress disorder, and schizophrenia.  The fact that such impairments will “consistently” meet the definition of “disability,” however, does not automatically mean that individuals so  impaired will be entitled to accommodations or prevail in litigation. 

The EEOC’s proposal apparently also provides a non-exhaustive list of impairments that are not “obviously” substantially limiting, but “may” be substantially limiting.  They include asthma, high blood pressure, coronary artery disease, learning disabilities, a back or leg impairment, carpal tunnel syndrome, psychiatric disabilities, such as panic or anxiety disorder and forms of depression other than major depression, and hyperthyroidism.

Substantially Limited in Working

Setting forth what it describes as a more “straightforward analysis,” the EEOC proposes 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 as compared to most people having comparable training, skills, and abilities.”

The reference to “type of work” replaces the concepts of a class or broad range of jobs.  A “type of work,” the EEOC proposes, may be defined by the nature of the work or the specific job related requirements.  Examples include commercial truck driving, assembly line jobs, food service jobs, clerical jobs, or law enforcement jobs.  Job-related requirements characteristic of types of work include: repetitive bending, reaching, or manual tasks; repetitive or heavy lifting; prolonged sitting or standing; extensive walking; driving; working under certain conditions, such as in workplaces characterized by high temperatures, high noise levels, or high stress; and working rotating, irregular, or excessively long shifts.  

The EEOC proposal recognizes that limitations may exist only in the workplace. For example, someone who is not substantially limited in standing or lifting still might be substantially limited in working in jobs that require standing for extended periods (in many retail jobs, for example) or lifting heavy packages.  If adopted, this proposed interpretation may alter the widely accepted view that the inability to perform a single job does not make one disabled under the ADA. 

Regarded as Having a Disability Clarified

Many believe the ADAAA’s greatest impact will be felt through the changes made to the concept of “regarded as” having a disability.  The proposed regulation appears to confirm this, saying that a covered entity that takes some prohibited action against an individual – failure to hire, termination, and the like – because of an impairment regards the individual as having a disability, unless the impairment is transitory and minor.  The proposal also makes clear that actions based on an impairment’s symptoms or  on an individual’s use of a mitigating measure (e.g., medication) amount to actions based on an impairment.

* * *

We will continue to monitor the development of these important ADA regulations.  Jackson Lewis attorneys in the Disability, Leave and Health Management practice group are available to answer your questions about this and other workplace laws.

Related Links
EEOC June 17 Press Release EEOC June 17 Statement of Christopher Kuczynski President Bush Signs Landmark Amendments to the Americans with Disabilities Act