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Long-Awaited Proposed ADA Regulations Issued by the EEOC

Proposing sweeping changes to its regulations and interpretative guidance under the Americans with Disabilities Act (ADA), the Equal Employment Opportunity Commission (EEOC) has published a Notice of Proposed Rulemaking (NPRM) in today’s Federal Register in order to implement the ADA Amendments Act of 2008 (ADAAA).

Interpretation of “Disability” Changed

Noting that the ADAAA retains the ADA’s basic definition of “disability” as (i) an impairment that substantially limits one or more major life activities, (ii) a record of such an impairment, or (iii) being regarded as having such an impairment, the proposed regulations change how these statutory terms are interpreted in several key ways.  They:

1. Interpret broadly the definition of “disability”;
2. Significantly lower the threshold to establish an individual is “substantially limited,” so that an impairment need not “significantly” or “severely” restrict a major life activity in order to meet the standard, and delete the terms “condition, manner, or duration” under which a major life activity is performed, in order to effectuate Congress’s instruction that “substantially limits” is not to be misconstrued to require the level of limitation, and the intensity of analytical focus, applied by Supreme Court cases;
3. Expand the definition of “major life activities” by providing two non-exhaustive lists of included activities and functions:
   • the first list includes activities such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working;
   • the second list includes major bodily functions, such as 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, many of which were included by Congress in the ADAAA.  The EEOC has included examples of conditions deserving of coverage, such as cancer, epilepsy, HIV and AIDS;
4. Eliminate consideration of the ameliorating effect of mitigating measures, other than ordinary eyeglasses or contact lenses, in assessing whether an individual has a “disability”;
5. Include an impairment that is episodic or in remission as a “disability” if it would substantially limit a major life activity when active; and
6. Significantly change 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.  Instead, the proposed regulations provide that an applicant or employee who is subjected to an action prohibited by the ADA (e.g., failure to hire, denial of promotion, or termination) because of an actual or perceived impairment, or actions based on symptoms of an impairment, will meet the “regarded as” definition of disability, unless the impairment is both transitory and minor.

Other Changes

The EEOC’s proposed regulatory changes also provide some relief for employers by clarifying that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation.  Lastly, the EEOC proposes limitations on an employer’s ability to use selection criteria in employment decisions by prohibiting the use of qualification standards, employment tests, or other selection criteria based on an individual’s uncorrected vision, unless shown to be job-related for the position in question and consistent with business necessity.

There is a 60-day public comment period during which time the EEOC will receive comments concerning the proposed changes to the ADA regulations and the EEOC’s interpretative guidance.  After that public comment period, and consideration of the comments received, the EEOC will issue final regulations and provide an effective date on which they will be implemented.

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Jackson Lewis will soon issue a Special Report analyzing the EEOC’s proposed rule changes and offer practical guidance on their likely impact.  We will keep you abreast of rulemaking developments.