HR Management & Compliance

Changes to ADA Regulations Are Coming

This content was originally published in October 2009. For the latest FMLA regulation changes, visit our FMLA article archives or try our practical FMLA compliance guide.

In June, The U.S. Equal Employment Opportunity Commission (EEOC) voted 2 to 1 in favor of new proposed regulations under the Americans with Disabilities Act (ADA). The proposed revisions would reflect changes made by the ADA Amendments Act (ADAAA) of 2008.

The ADAAA, which went into effect January 1, 2009, makes important changes to the definition of the term “disability” by rejecting the holdings in several U.S. Supreme Court decisions and portions of EEOC’s prior ADA regulations. The effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability as defined by the ADA.

EEOC’s approval of the proposed ADA regulations represents an initial stage in the regulatory process. Next, the proposed rules must get approval from the Office of Management and Budget (OMB) before being released to the public as proposed rules.

What’s in the Proposed Regs?

Although the content of the proposed regulations has not been released to the public, EEOC’s 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 (June 17, 2009).

According to the Kuczynski statement, the proposed regulations focus on three major changes to the definition of the term “disability”—specifically:

  1. Section 1630.2(i)—definition of “major life activities,”
  2. Section 1630.2(j)—definition of “substantially limits,” and
  3. Section 1630.2(l)—the “regarded as” prong of the definition of “disability.”

Finally, states Kuczynski, the proposed Notice of Proposed Rule Making includes numerous examples in the text of the regulation itself that illustrate how to apply the revised definition of disability.

Major Life Activities

According to Kuczynski, the proposed ADA regulations include all of the examples of major life activities listed in the ADAAA and some others. Reaching, sitting, and interacting with others have been included in the proposed regulations because EEOC has previously recognized them as major life activities.

Proposed Section 1630.2(i) (addressing major life activities) also includes a definition of “major life activities” taken from the interpretive guidance accompanying the 1991 regulation: “those basic activities that most people in the general population can perform with little or no difficulty.”

Several examples illustrate impairments that affect certain major life activities. Kidney disease affects bladder function; cancer affects normal cell growth; diabetes affects functions of the endocrine system (e.g., production of insulin); epilepsy affects neurological functions or functions of the brain; and HIV and AIDS affect functions of the immune system and reproductive functions. The examples in the proposed rule show that the impairments offered as examples may affect major life activities other than those specifically identified.

‘Substantially Limits’ Revised

The proposed regulations significantly revise the standard for determining whether impairment substantially limits a major life activity, says Kuczynski. The proposed regulations state that to be “substantially limiting,” an impairment need not severely restrict or significantly restrict performance of a major life activity. Notably, Kuczynski admits that “it remains to be seen what level of ‘limitation’ will be sufficient to satisfy the ‘substantially limits’ standard.”

However, he restates the EEOC’s long-standing position that “temporary, nonchronic 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.”
The proposed regulations also provide a nonexhaustive 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,” 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.”

Kuczynski says that the reference to “type of work” replaces the concepts of a class or broad range of jobs. A “type of work,” 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.

‘Regarded as’ Standard Clarified

According to Kuczynski, 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 proposed regulations also make 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.

Finally, consistent with the express language of the ADAAA, the proposed rule states that individuals covered only under the “regarded as” prong of the definition of disability are not entitled to reasonable accommodation. A new subparagraph added to Section 1630.9 says that reasonable accommodations are available to individuals covered under either the first or second prongs of the definition of “disability.”

BLR will continue to follow the proposed ADA regulations as they move through the federal government’s rulemaking process.

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