September 28, 2009

On September 23, 2009, the Equal Employment Opportunity Commission (EEOC) published a Notice of Proposed Rulemaking, proposing changes to current EEOC regulations regarding the definition of the term “disability” under the Americans with Disabilities Act (ADA).  As we have previously reported to you, on September 25, 2008, President Bush signed into law the ADA Amendments Act of 2008 (ADAAA).  Congress intended this statute to undo the effects of several United States Supreme Court decisions handed down in the last ten years that gave a fairly strict interpretation to the ADA’s definition of the term “disability.” 

In the new NPRM, the EEOC seeks to bring its current regulations into line with the ADAAA.  Before the proposed regulations in the NPRM become final, binding regulations, the EEOC is accepting written comments from the public until November 23, 2009.  If you have comments you would like shared with the EEOC, or concerns about the proposed rules, please do not hesitate to contact the Ahlers attorney with whom you normally work.

Below is a summary of the changes to current EEOC regulations made by the proposed rules in the NPRM:

  • Provides that the definition of “disability” shall be interpreted broadly;
  • Revises the portion of the regulations defining the term “substantially limits,” as directed in the ADAAA, by providing that a limitation need not “significantly” or “severely” restrict a major life activity in order to meet the standard, and by deleting reference to the terms “condition, manner, or duration” under which a major life activity is performed, in order to effectuate Congress’s clear instruction that “substantially limits” is not to be misconstrued to require the “level of limitation, and the intensity of focus” applied by the Supreme Court in Toyota Motor Mfg., Ky v. Williams, 534 U.S. 134 (2002);
  • Expands the definition of “major life activities” through two nonexhaustive lists:

    • 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, some of which the EEOC previously identified in regulations and sub-regulatory guidance, and some of which Congress additionally included in the ADAAA;
    • 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, and some of which have been added by the EEOC as further illustrative examples;
  • Provides that mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a “disability”;
  • Provides that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
  • Provides that the definition of “regarded as” is changed so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead provides 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 will meet the “regarded as” definition of disability, unless the impairment is both transitory and minor;
  • The proposed rule provides that actions based on an impairment include actions based on symptoms of an impairment, and the EEOC invites public comment on this point;
  • Provides that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation; and
  • Provides that qualification standards, employment tests, or other selection criteria based on an individual’s uncorrected vision shall not be used unless shown to be job-related for the position in question and consistent with business necessity.

For your guidance and convenience, a copy of a side-by-side comparison chart discussing the changes made from the current EEOC regulations to the newly proposed regulations is attached to this email.  In addition, a copy of the proposed rules themselves is attached to this email.  Finally, a copy of a “Questions and Answers” document issued by the EEOC regarding the NPRM is attached to this email.

As mentioned at the Employment Client Seminar this past July, now that the ADA’s focus has shifted from the definition of disability to whether an individual is qualified to perform the essential functions of his or her job with or without reasonable accommodation, we are advising employers to review and revise, if necessary, job descriptions and policies on reasonable accommodation.  Please contact Ahlers & Cooney Employment Practice Group if we can be of assistance in this regard.


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