EEOC Proposes ADA Amendments Act Regulations

July 26, 2009

By: Andrew D. Bobrek

The U.S. Equal Employment Opportunity Commission (“EEOC”) has approved new regulations implementing the Americans with Disabilities Act Amendments Act of 2008 . Although these regulations are not yet public (and are pending review at the Office of Management and Budget), recent comments offered by EEOC officials nevertheless provide an insightful glimpse as to what changes employers can expect—including some changes arguably outside the scope of the ADAAA.

Congress passed the ADAAA with the intent of reversing several Supreme Court rulings interpreting the ADA’s scope of protection.  In short, the ADAAA sought to expand the definition of “disability” to cover a broader range of impairments than permitted under the Supreme Court’s interpretation of the law. The legislation also empowered EEOC to draft regulations implementing this new, broader definition.

EEOC recently met to approve proposed regulations fulfilling this mandate. At this meeting, EEOC officials—principally Assistant Legal Counsel Christopher J. Kuczynski—commented on select portions of the new regulations, which appear to constitute a major shift in policy. Given the remedial intent of the ADAAA, this shift will not come as a surprise to most observers. What is surprising, however, is that EEOC’s proposed regulations, at least according to some commentators, arguably exceed the scope of the ADAAA’s rulemaking authority. A few examples illustrate this noteworthy development.

First, comments from both Commissioner Constance Barker (who voted against approval) and Kuczynski indicate that EEOC has proposed removing the “condition, manner, or duration” concept from the current ADA regulations. To date, employers have applied this criteria to determine whether an impairment “substantially limits” a major life activity and, therefore, may require a reasonable accommodation. The new regulations would replace this concept with hypothetical examples designed to aid disability determinations. According to several commentators, however, nothing in the ADAAA indicates that Congress intended to eliminate the “condition, manner, or duration” concept, and, in fact, the legislative history suggests that drafters intended to preserve this analytical device for employers.

Second, the proposed regulations would redefine how an employer must evaluate whether an individual is substantially limited in the major life activity of “working”—another issue not expressly addressed by the ADAAA. Under current law, an individual is protected only if he or she cannot perform a “broad range” or “class” of jobs due to an impairment. The proposed regulations, however, would dispense with this concept, and, instead, require that an employee be unable to perform the “type of work” at issue (such as commercial truck driving, clerical work, assembly line work, or law enforcement).

Third, the proposed regulations include what amounts to a list of per se disabling conditions. According to Kuczynski’s comments, this list would include the following conditions: autism, blindness, cancer, cerebral palsy, deafness, diabetes, epilepsy, HIV/AIDS, intellectual disabilities, missing limbs, mobility impairments, multiple sclerosis, muscular dystrophy, as well as major depression, bipolar disorder, post-traumatic stress disorder, and schizophrenia. Enactment of such a per se list—which was not included in the ADAAA itself—would constitute a major departure from EEOC’s current policy calling for employers to take a “case-by-case” approach to assessing potential workplace impairments. The proposed regulations also identify several examples of “major life activities” and “major bodily functions” not included in the ADAAA itself.

Although more will be known once the proposed regulations are made public (including what steps employers may need to take to ensure compliance), one fact appears clear even at this early juncture: EEOC is plainly favoring a more categorical approach to determining whether an individual has a covered disability instead of the “individualized assessment” process which has thus far served as a hallmark of the ADA. 

Once the Office of Management and Budget completes its review, we anticipate the proposed regulations will be published in the Federal Register and interested parties will then have an opportunity to submit comments. In the mean time, employers should ensure their current practices conform with the ADAAA—which went into effect on January 1, 2009—paying particular attention to their reasonable accommodation policies and procedures.