Comment Period Closes on EEOC's ADAAA Proposed Regulations

December 10, 2009

By: Andrew D. Bobrek

As we reported earlier this year, the Equal Employment Opportunity Commission (“EEOC”) has proposed regulations implementing the Americans with Disabilities Act Amendments Act (“ADAAA”). The EEOC published its proposed regulations in September, and the period for public comment recently closed on November 23, 2009. The EEOC will now evaluate the comments it has received and then issue final regulations, which may or may not include changes to the proposed rules.

Consistent with the intent of the ADAAA, the EEOC’s proposed regulations would broaden the definition of what constitutes a protected “disability” under federal law. The EEOC believes that this will have the effect of shifting the focus of litigation away from whether a person’s impairment is a covered “disability,” and to the issue of whether an employer has complied with its obligations under the law.

While many aspects of the proposed regulations appear to reasonably interpret the ADAAA, commentators have noted there are some provisions which, at least arguably, constitute overreaching on the EEOC’s part. Among the most controversial of these provisions are the following:

New List of “Per Se” Disabilities

Perhaps the most controversial element of the proposed regulations is the EEOC’s creation of what some commentators have called a “per se” list of protected disabilities. The ADAAA itself neither contains such a list, nor expressly authorizes the EEOC to create one. The EEOC claims its non-exclusive list does not preclude employers from undertaking an “individualized assessment” to evaluate a potential disability. At the same time, according to the agency, the list is intended to ensure this assessment “can be done very quickly and easily with respect to these types of impairments, and will consistently result in a finding of disability.”

Elimination of “Condition, Manner, or Duration” Analysis

The proposed regulations would redefine the term “substantially limits,” by eliminating the previous “condition, manner or duration” evaluation used by employers to determine whether an impairment substantially limits a major life activity. Instead, the regulations state this evaluation should be made on the basis of “common-sense” and “without resorting to scientific or medical evidence” by comparing an individual’s limitation to “the ability of most people in the general population.” (The ADAAA does not expressly address this issue, and the statute’s legislative history suggests that the drafters intended to preserve the “condition, manner, or duration” analytical device.)

“Major Life Activity” of “Working”

The proposed regulations would also alter the framework employers are required to use to analyze whether an impairment substantially limits the major activity of working. (The ADAAA is silent on this issue as well.) Specifically, under the proposed regulations, “an impairment substantially limits the major life activity of working if it substantially limits an individual’s ability to perform, or meet the qualifications for, the type of work at issue.” This new framework would replace current law which requires an inability to perform a “broad range” or “class” of jobs.

Less controversial, but nonetheless noteworthy, are the following provisions:

Expansion of “Major Life Activities” and “Major Bodily Functions” Lists

The proposed regulations would expand the list of “major life activities” found in the ADAAA, to include: sitting, reaching and interacting with others. Similarly, the proposed regulations would expand the ADAAA’s list of “Major Bodily Functions” to include: hemic, lymphatic, musculoskeletal, special sense organs and skin, genitourinary and cardiovascular.

Expansion of “Mitigating Measures” List

The proposed regulations supplement the ADAAA’s list of mitigating measures, which may not be considered in determining whether an individual has an impairment which substantially limits a major life activity, to include surgical interventions that do not permanently eliminate an impairment. However, EEOC takes the position that mitigating measures may be taken into consideration for other purposes, for example, to determine whether a reasonable accommodation is required or to determine whether an individual poses a “direct threat” in the workplace.

Although it is not known when the EEOC will issue its final regulations, Commissioner Constance Barker has stated it could be as early as March 2010. We will continue to monitor and report on any noteworthy developments.