On September 23, 2009, the U.S. Equal Employment Opportunity Commission published a Notice of Proposed Rulemaking (NPRM) in the Federal Register to conform its Americans with Disabilities Act (ADA) regulations and interpretive guidance to the Amendments Act of 2008 (ADAAA).

The ADAAA, which went into effect on January 1, 2009, overturned a series of U.S. Supreme Court rulings that purported to narrow the scope of protections afforded by the ADA. Passage of the ADAAA represented a significant change in the way the basic definitional framework of the ADA should be interpreted, causing employers to re-evaluate how they confront disability issues in the workplace. Congress directed the EEOC to revise its regulations to restore the broader scope of protection originally envisioned under the ADA and, further, to provide employers with appropriate guidance on how to interpret and apply the ADAAA. The NPRM reflects the EEOC's effort to comply with this directive.

The EEOC is soliciting written comments on the proposed regulations and guidance through November 23, 2009. After the comment period, the EEOC will finalize and publish the revised regulations and interpretive guidance. Below is a summary of key changes to the current EEOC regulations and interpretive guidance set forth in the NPRM.

The Definition of Disability

The ADAAA defines disability as: 

  1. a physical or mental impairment that substantially limits a major life activity;
  2. a record of physical or mental impairment that substantially limited a major life activity; or 
  3. when an entity (e.g., an employer) takes an action prohibited by the ADA based on an actual or perceived impairment. 


The proposed regulations offer separate guidance on each of the three definitions of "disability," with the constant reminder that the standards for determining whether an individual is "disabled" under the ADA should be construed in favor of broad coverage and should not demand extensive analysis.

Major Life Activities

The ADAAA provides a non-exhaustive list of "major life activities." The proposed regulations would expand this definition to also include sitting, reaching, and interacting with others. The regulations also add a non-exhaustive list of "major bodily functions" to those already set forth in the ADAAA itself, including "hemic, lymphatic, musculoskeletal, special sense organs and skin, genitourinary, and cardiovascular." The purpose of adding major bodily functions to the list of major life activities is to make it easier to find that individuals with certain types of impairments have a disability.

Consistent with ADAAA's inclusion of impairments that are episodic or in remission within the definition of "disability," the proposed regulations provide specific examples of such impairments, including epilepsy, hypertension, multiple sclerosis, asthma, diabetes, major depression, bipolar disorder, and schizophrenia. Similarly, if an impairment such as cancer is in remission, but there is a possibility that it could return in a substantially limiting form, then under the ADAAA this would fall within the definition of "disability."

"Substantially Limited" in a Major Life Activity

Under the "actual" and "record of" prongs of the definition of "disability," an individual must prove that the impairment complained of "substantially limits" a major life activity. Based on the broad scope of coverage intended by Congress, the EEOC concluded that its prior formulation suggested a more extensive analysis than permitted under the ADAAA. The proposed regulations, therefore, specifically delete the strict language to which Congress objected, including "prevent" and "significantly or severely restrict."

The proposed regulations state that an impairment is 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. The term "average person" was changed to "most people in the general population." According to the EEOC, this revision is not a substantive change, but rather is intended to conform the language to the simpler and more straightforward approach required by the ADAAA and to further emphasize that the comparison between the individual and most people should be based on a "common-sense approach" that does not require an exacting or statistical analysis.

"Substantially Limited" in Working

Although an individual with a disability will usually be substantially limited in another major life activity, therefore generally making it unnecessary to consider whether the individual is substantially limited in working, this issue nevertheless arises for employers facing disability claims. Moreover, as the EEOC recognized, there may be situations in which an impairment substantially limits a person’s ability to meet certain job-related requirements, even though it does not impose substantial limitations outside the workplace.

The proposed regulations provide that an individual will be substantially limited in the major life activity of working if the impairment substantially limits the individual's ability to perform or meet the qualifications for a "type of work." According to the EEOC, the "type of work" concept is preferable to the prior concepts of "class" or "broad range" of jobs because it is more straightforward and easy to understand. A "type of work" includes the job the individual has been performing or for which he or she is applying and may also be identified by the nature of the work as to which the individual is substantially limited when compared to most people having similar training, skills, and abilities.

The proposed regulations do away with the statistical analysis previously required by some courts, as well as the specific factors in the prior regulations, that had been used as guiding principles in determining whether the limitation on working is "substantial." Those factors include the geographical area to which the individual has reasonable access, the job from which the individual has been disqualified, and the number and types of jobs using similar training, knowledge, skills, or abilities within that geographical area from which the individual is also disqualified because of the impairment.

Temporary or Chronic Impairments

The proposed regulations, consistent with the current regulations, provide that temporary, non-chronic impairments of short duration with little or no residual effects usually will not substantially limit a major life activity. The non-exhaustive list of such temporary, non-chronic impairments includes the common cold, seasonal or common influenza, a sprained joint, minor and non-chronic gastrointestinal disorders, or a broken bone that is expected to heal completely.

The proposed regulations further clarify that the definition of impairment as "transitory," that is, "lasting or expected to last for six months or less," that appears only in the "regarded as" definition of "disability," does not establish a requirement that an impairment last for more than six months in order to be considered substantially limiting under the "actual" or "record of" prongs of the "disability" definition. To the contrary, the proposed regulations state that an impairment may substantially limit a major life activity even if it lasts, or is expected to last, for fewer than six months.

Some Impairments Always Meet the Definition of "Disability"

The proposed regulations provide a non-exhaustive list of impairments that, due to their intrinsic nature, will consistently meet the definition of "disability" when analyzed in light of the ADAAA. The proposed regulations identify the following as examples of such impairments: deafness, blindness, intellectual disability (formerly known as mental retardation), partially or completely missing limbs, mobility impairments requiring use of a wheelchair (a mitigating measure), autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia. The ease with which certain individuals will be protected as disabled under the ADAAA is particularly highlighted in the proposed regulations’ statement, that the individualized assessment of whether a substantial limitation exists can be "conducted quickly and easily, and will consistently result in a determination that the person is substantially limited in a major life activity." (Emphasis added.)

The proposed regulations also provide examples of impairments that, although substantially limiting for some individuals, may not be for others. Such examples include asthma, back and leg impairments, and learning disabilities. These types of impairments may require more analysis to determine whether they are substantially limiting for a particular individual but, nevertheless, do not require extensive inquiry and should be construed in favor of broad coverage under the ADAAA.

Mitigating Measures

The NPRM provides that employers no longer are permitted to take into account the positive effects of "mitigating measures" in determining whether an impairment substantially limits a major life activity. Rather, the determination of disability must focus on whether the individual would be substantially limited in performing a major life activity. This prohibition on consideration of "mitigating measures" applies only to the determination of whether an individual meets the definition of disability. For all other determinations, however, including the need for a reasonable accommodation, employers are permitted to consider the positive and negative effects of a mitigating measure.

"Regarded As" Definition of Disability

The ADAAA defined what is meant by "regarded as having an impairment," the third prong of the ADA definition of disability. An individual meets this definition and is protected if he or she has been subjected to an action prohibited by the ADA "because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity," unless the impairment is transitory (lasting or expected to last for six months or less) and minor. The proposed regulations make clear that the "regarded as" definition no longer requires a showing that the employer believed the impairment (or perceived impairment) substantially limited performance of a major life activity.

The proposed regulations further state that "regarded as" coverage can apply if an employer takes a prohibited employment action based on an individual's use of mitigating measures for, or the symptoms of, an impairment, even if the employer is unaware of the underlying impairment. Finally, the proposed regulations clarify that an employer does not have an obligation to provide reasonable accommodation for individuals disabled under the "regarded as" prong.

Conclusions

The proposed regulations contain a variety of changes and significant expansions to the existing ADA rules and regulations. Ballard Spahr LLP is prepared to assist any employer or employer group in preparing comments on the proposed regulations and assisting employers with compliance issues related to the ADAAA and the new regulations. Please contact Brian D. Pedrow, at 215.864.8108 or pedrow@ballardspahr.com, or any member of Ballard Spahr’s Labor, Employment and Immigration Group.


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