The U.S. Equal Employment Opportunity Commission (EEOC) is moving forward with new regulations that will make it much easier for employees claiming protection under the Americans with Disabilities Act (ADA) to establish that they have a covered disability. At a public meeting in June, the EEOC voted 2-1 to approve draft changes to the existing ADA regulations as the initial step in the regulatory process by which final regulations will be promulgated.
The U.S. Equal Employment Opportunity Commission (EEOC) is moving forward with new regulations that will make it much easier for employees claiming protection under the Americans with Disabilities Act (ADA) to establish that they have a covered disability. At a public meeting on June 17, the EEOC voted 2-1 to approve draft changes to the existing ADA regulations as the initial step in the regulatory process by which final regulations will be promulgated.
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Need for new regs
The need for new regulations was prompted by the ADA Amendments Act of 2008 (ADAAA), which took effect January 1, 2009. The new statute makes important changes to the definition of “disability” by rejecting several U.S. Supreme Court decisions that narrowly defined the term.
The ADAAA emphasizes that the term “disability” should be construed broadly to the maximum extent permitted by the terms of the ADA and generally shouldn’t require extensive analysis. In enacting the ADAAA, Congress specifically told the EEOC to write new regulations to conform to this more liberal definition of “disability.”
Highlights of proposed rules
As outlined at the June meeting, the EEOC’s proposed rules will eliminate the existing requirement that a physical or mental impairment severely restrict a major life activity in order to be considered a disability. Instead, the analysis of whether a person is disabled will be guided by the following rules:
- The determination of whether someone is disabled shouldn’t demand extensive analysis.
- The focus in ADA cases will be on whether discrimination occurred.
- If any impairment substantially limits one major life activity, that’s enough — there is no need to show a limitation in any other major life activity. For example, a person whose cell growth is substantially limited by cancer need not show that the limitation affects any other major life activity, including working.
- A comparison of one’s limitation to the general population may be made in a commonsense fashion, without a statistical analysis.
- Temporary nonchronic impairments, such as colds, sprained ankles, or broken bones that are expected to heal, won’t be disabilities. However, impairments lasting less than six months still may be considered disabilities, depending on how limiting they are.
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Categorical disabilities
Under the original ADA, the analysis of whether a person is disabled is done on an individual, case-by-case basis. The EEOC’s proposed rule takes a different approach, however. Now, general categories of medical impairments will be considered to fit within the definition of disability because of the nature of the medical disorder.
Thus, conditions such as cancer, epilepsy, multiple sclerosis, HIV/AIDS, major depression (other than general depression), posttraumatic stress disorder, bipolar disorder, and schizophrenia automatically will be considered disabilities. Additionally, the proposed rule provides that when dealing with learning disabilities, an individual may be covered by the statute even if he has achieved a high level of academic success.
The EEOC also is proposing changes to the analysis of being disabled in working. Previously, to demonstrate a substantial limitation in the major life activity of working, an employee had to show that he was substantially limited in a class or broad range of jobs. The proposed rule changes the analysis. Now, a person need show only limitation in a “type” of work as defined by the nature of the work and the specific job-related requirements.
Additional provisions
In addition to proposing that certain types of medical conditions should be considered disabling under the ADA, the EEOC’s regulations address other changes created by the ADAAA, including:
- expanding the definition of “major life activities” to include two nonexhaustive lists:
- the first list includes many activities the EEOC has recognized (e.g., walking) as well as activities it hasn’t recognized (e.g., reading, bending, and communicating);
- the second list includes major bodily functions (e.g., “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions”);
- stating that mitigating measures other than “ordinary eyeglasses or contact lenses” won’t be considered in assessing whether an individual has a disability;
- clarifying that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
- changing the definition of “regarded as” disabled to no longer require showing that the employer perceived the individual as substantially limited in a major life activity and instead state that an applicant or employee is “regarded as” disabled if he is subject to an action prohibited by the ADA (e.g., failure to hire or termination) based on an impairment that isn’t transitory and minor;
- providing that individuals covered only under the “regarded as” prong aren’t entitled to reasonable accommodation. (This is a helpful clarification for employers.)
Americans with Disablities (ADA) Compliance Manual
Next steps
The next step in the regulatory process is for the U.S. Office of Management and Budget to review the EEOC’s proposal. Other affected federal agencies also may weigh in on the proposed rule changes. Only after that process is complete will the EEOC publish a “Notice of Proposed Rule Making” (NPRM) for public comment. Once that is done, you can submit written comments to the commission for consideration before a final rule takes effect.
Under the EEOC’s regulatory timetable, the publication of an NPRM is to occur in August 2009, although the date may be pushed back to the fall, depending on the comments of other federal agencies. We will continue to provide you with updates about the EEOC’s rulemaking as well as the new regulations’ impact on your business.