EEOC’s Proposed Regulations Would Significantly Alter Scope - 11/20/2009
CLIENT ALERT
The Americans with Disabilities Act Amendments Act of 2008 (the “ADAAA” or the “Act”) was signed into law by President Bush and became effective on January 1, 2009. The Act, by design, makes it easier for an employee seeking protection under the American with Disabilities Act (“ADA”) to establish that he or she is disabled.
The Equal Employment Opportunity Commission (the “EEOC”) recently published proposed regulations implementing the Act. Since the proposed regulations are not final, they are not legally binding. Nevertheless, they provide insight into how the EEOC views the ADAAA, and it is likely that many, if not all, of the EEOC’s final regulations concerning the ADAAA will be substantially similar to the proposed regulations.
The proposed regulations emphasize that the ADAAA is to be construed broadly, as covering as many individuals as possible. Indeed, the EEOC estimates that approximately one million additional workers will be covered by the Act’s broad definition of disability. This Client Alert highlights the most significant changes employers should expect to be included in the EEOC’s final ADAAA regulations.
The EEOC Would Relax the Standard for Demonstrating that an Impairment Is “Substantially Limiting”
In the EEOC’s view, an impairment will now satisfy the “substantially limited” requirement “if it ‘substantially limits' an individual’s ability to perform a major life activity as compared to most people in the general population.” The limitation at issue would no longer need to “significantly” or “severely” restrict a major life activity.
The EEOC Identifies Impairments That Will “Consistently Meet the Definition of Disability”
The proposed regulations provide a list of conditions that the EEOC states will consistently meet the broad definition of disability. Those conditions include: autism, cancer, cerebral palsy, diabetes, epilepsy, HIV or AIDS, multiple sclerosis and muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.
In addition, the proposed regulations also include examples of impairments that “may be disabling for some individuals but not for others.” Asthma and hypertension are included as examples of the later category.
The EEOC Would Broadly Define Major Life Activities
The proposed regulations define major life activities as “those basic activities, including major bodily functions, that most people in the general population can perform with little or no difficulty.” The EEOC provides two non-exhaustive lists of 18 activities and 18 bodily functions that would qualify as major life activities. The lists expand the already lengthy list of major life activities contained in the ADAAA, by proposing that “sitting,” “reaching,” and “interacting with others” be considered major life activities.
The proposed regulations also will drastically alter how employers should view the major life activity of “working.” Previously, an employee would be considered to be limited in the major life activity of working only if he or she was unable to perform a “class” or “broad range” of jobs. Now, the proposed regulations would provide that an employee will be protected if he she is substantially limited in his or her “ability to perform, or to meet the qualifications for, the type of work at issue.” The “type of work at issue” includes the job the individual has been performing or for which he or she is applying, and jobs that have qualifications or job-related requirements which the individual would be substantially limited in performing as a result of the impairment.
The EEOC Would Expand Coverage for Individuals “Regarded As” Disabled
The proposed regulations would also significantly expand coverage for individuals “regarded as” disabled. Under this provision, an individual will be “regarded as” disabled if he or she 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, whether or not the impairment limits or is perceived to limit a major life activity. Thus, under the proposed regulations, an individual will be covered by the ADA even if he cannot show that the employer perceived him to be substantially limited in a major life activity, so long as he can show that the employer regarded him as having a condition that would qualify as a disability. The proposed regulations expand upon this statutory change by stating that an individual will be regarded as having a disability if she is subjected to an adverse action based on a symptom of such an impairment, or based on medication or any other mitigating measure used in connection with such an impairment.
The EEOC Would Limit Consideration of Mitigating Measures
The ADAAA rejects federal court decisions holding that “mitigating measures” (e.g., medications, prosthetics, corrective surgery, hearing aids, and mobility devices) should be considered in assessing whether an individual is “disabled” under the ADA. The proposed regulations emphasize that impairments are to be evaluated in their unmitigated state when determining whether the individual is substantially limited in a major life activity, except that the impact of ordinary eyeglasses and contact lenses may be considered.
The comment period on the proposed regulations closes on November 23, 2009. At the end of the comment period, the EEOC will issue its final regulations.
For more information, contact any Frantz Ward labor and employment attorney at Frantz Ward LLP, 2500 Key Center, 127 Public Square, Cleveland, OH 44114, 216-515-1660, attorneys@frantzward.com.
This document is intended to provide general information about legal developments, not legal advice.
Receipt of this information does not create an attorney-client relationship.
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