Wednesday, September 23, 2009

EEOC Proposes New Regulations Under ADAA.

Last week, the EEOC proposed new ADA regulations to implement the Americans With Disabilities Amendment Act (ADAA) which took affect on January 1, 2009. The new regulations were published this morning in the Federal Register. The EEOC published a Q&A brochure about the new regulations on its website last week. Among other things, the new regulations indicate the existence of per se disabilities and per se non-disabilities.

Impairments. The proposed regulations indicate that certain “impairments will consistently meet the definition of disability,” and assessment of the existence of a disability can be conducted quickly and easily in these situations, such as when the individual has cancer, cerebral palsy, diabetes, epilepsy, HIV or AIDS, multiple sclerosis, major depression, PTSD, etc. By way of comparison, other impairments may be disabling for some and not for others. Still others will typically not be considered disabilities, such as the common cold, seasonal or common flue, sprains, non-chronic gastrointestinal disorders, etc.

Major Life Activities. As discussed in a prior summary at Congress Passes ADA Amendments Act to Abrogate Pro-Employer Supreme Court Decisions, the ADAA broadened the definition of “major life activity” and provided that disability should be broadly construed in favor of coverage. With that in mind, the new proposed regulations specify that major life activities include “concentrating, thinking, communicating, interacting with others”, etc. and that an individual is substantially limited in a major life activity if that person is limited in any one of those activities, regardless of whether the individual is substantially limited in the ability to work or limited “in the ability to perform activities of central importance to daily life.” Rather, “an impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered a disability.” Moreover, “[t]he comparison of an individual’s limitation to the ability of most people in the general population often may be made using a common sense standard, without resorting to scientific or medical evidence.”

That being said, the EEOC still proposes a regulation on what it means to be substantially limited in the major life activity of working. An impairment will be considered to substantially limit the ability to work “if it substantially limits an individual’s ability to perform, or to meet the qualifications for, the type of work at issue” which “includes the job the individual has the individual has been performing, or for which the individual is applying, and jobs with similar qualifications or job-related requirements which the individual would be substantially limited in performing because of the impairment.”

While there is a “transitory and minor” exception to “substantially working” for impairments which are not expected to last more than six months, this exception “does not establish a durational minimum for the definition of ‘disability’” for an actual disability or record of disability. “An impairment may substantially limit a major life activity even if it lasts, or is expected to last, for fewer than six months.” Notably, “the focus is on how a major life activity is substantially limited, not on what an individual can do in spite of an impairment.” In addition, “[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. Examples may include . . . asthma, . . . psychiatric disabilities, such as depression,” etc.

Mitigating Measures. The ADAA removed the “mitigating measures” doctrine from the consideration of what constitutes a covered disability, except with respect to the use of contacts or eye glasses. As stated in the proposed regulations, an individual who would be substantially limited in a major life activity without the use of medication or other mitigating measure would be considered to be disabled. By way of example, “[a]n individual who is taking a psychiatric medication for depression, . . . has a disability if there is evidence that the mental impairment, . . if left untreated, would substantially limit a major life activity.”

Record of Impairment. An individual has a covered record of disability if the individual has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.” For example, “[a]n employee who in the past was misdiagnosed with bipolar disorder and hospitalized as the result of a temporary reaction to medication she was taking has a record of a substantially limiting impairment, even though she did not actually have bipolar disorder.”

Regarded As Disabled. An individuals will have a covered disability
if the individual is subjected to an action prohibited by this part, including . .denial of any other term, condition, or privilege of employment based on an actual or perceived physical or mental impairment, whether or not the impairment limits or is perceived to limit a major life activity. Proof that the individual was subjected to a prohibited employment action e.g., excluded from one job, because of an impairment other than an impairment that is transitory and minor . . . ) is sufficient to establish coverage. . . . Evidence that the employer believed the individual was substantially limited in any major life activity is not required.
(emphasis added).

“[C]overage can be established whether or not the employer was motivated by myths, fears, or stereotypes. . . an individual is regarded as disabled when an [employer] takes some action prohibited by the ADA . . . because of an actual or perceived impairment” or symptoms or “mitigating measures, such as medication that an individual uses because of an impairment.”
Proof that the individual was subjected to a prohibited employment action . . . is sufficient to establish coverage under the ‘regarded as’ definition . . . Evidence that the employer believed the individual was substantially limited in any major life activity is not required.

Employers are not required to provide reasonable accommodations to employees who are merely regarded as disabled, but are to employees who are actually disabled or have a record of disability.

Defenses. Employers may still defend accusations of disability discrimination by showing that the employee did not establish that he or she was otherwise qualified for the position based on a “qualification standard” that is “job related and consistent with business necessity,” or that she or she poses “a direct threat to health or safety based on the best available objective medical evidence and an individualized assessment of the risk if any, posed.” Employers may also argue that the impairment was both transitory and minor.

The EEOC will accept written comments on the proposed rules until November 23, 2009.

Insomniacs can read the proposed regulations at and the EEOC’s Questions and Answer brochure at

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.