The Equal Employment Opportunity Commission (EEOC) has published in today’s Federal Register (pdf) its proposed revisions to the Americans with Disabilities Act (ADA) regulations and accompanying interpretive guidance in order to implement the ADA Amendments Act of 2008 (ADAAA). Last week, the EEOC published on its website a question and answer guide regarding these proposed rules.

Effective January 1 of this year, the ADAAA rejected a line of U.S. Supreme Court decisions that narrowed the definition of “disability” under the ADA. The ADAAA significantly expands the scope of ADA coverage, enabling more individuals alleging disability-based employment discrimination to establish that they are disabled under the ADA. To that end, Congress directed the EEOC to revise its ADA regulations to comply with the ADAAA.

In essence, the proposed rule published today does the following:

• provides that the definition of “disability” shall be interpreted broadly;
• revises the portion of the regulations defining the term “substantially limits” by providing that a limitation need not “significantly” or “severely” restrict a major life activity in order to meet the standard;
• expands the definition of “major life activities” through two non-exhaustive 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;
• 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.

Other important changes include a list of conditions that will “consistently meet the definition of disability.” These impairments include, but are not limited to, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.

With respect to the major life activity of “working,” the proposed regulations state that a person is substantially limited if he or she has an impairment that limits his or her ability to perform, or to meet the qualifications for, the type of work at issue, not the more stringent “broad range” or “class” of jobs standard. According to the regulations, “[w]hether an impairment substantially limits the major life activity of working must be construed broadly to the maximum extent permitted under the ADA and should not demand extensive analysis.” Moreover, under the proposed rule, the fact that an individual has obtained employment elsewhere is not dispositive of whether an individual is substantially limited in the ability to work.

The proposed rule also notes that adverse actions based on an impairment include actions based on symptoms of an impairment. Although the public may comment on any portion of the proposed regulations, the EEOC particularly invites comment on this point.

Comments to these proposed regulations must be made by November 23, 2009, and can be sent in written form to Stephen Llewellyn, Executive Officer, Executive Secretariat, Equal Employment Opportunity Commission, 131 M Street, NE, Suite 4NW08R, Room 6NE03F, Washington, D.C. 20507. The Agency will also accept comments that are 6 pages or fewer in length via fax to (202) 663-4114. Comments may also be sent electronically to http://www.regulations.gov.