June 20, 2009
June 20, 2009
Process for ADAAA Regulations Underway,
Barran Liebman LLP
On June 17, 2009, the Equal Employment Opportunity Commission (EEOC) approved proposed regulations implementing the ADA Amendments Act by issuing a Notice of Proposed Rulemaking. The next step is a review by the Office of Management and Budget before publication in the Federal Register. Then interested parties will have an opportunity to submit comments before final regulations are published.
These proposed regulations present a significant shift in EEOC policy in several respects and can affect the way employers address issues relating to applicants and employees with potential disabilities. First, the EEOC is proposing deleting the phrase “condition, manner, or duration” from the “substantially limited” formulation. The current EEOC regulation defines “substantially limited” as “significantly restricted as to the condition, manner, or duration under which an individual can perform a major life activity” as compared to the “condition, manner, or duration” that an average person in the general population can perform the same activity. Although Congress made clear its intention to broaden the scope of who will be considered disabled under the amended act, including instructing the EEOC to consider the “substantially limited” definition, critics believe that the EEOC’s proposal to remove the phrase “condition, manner, or duration” goes too far.
The proposed regulations also presume certain conditions to be “substantially limiting.” Among the conditions that EEOC has identified as “obviously substantially limiting” are cancer, diabetes, HIV/AIDS, major depression, post-traumatic stress disorder, and schizophrenia. Critics believe that by directly identifying certain conditions as “per se” disabilities, the EEOC is undermining the ADA’s requirement of an individualized assessment to determine whether someone is disabled.
The EEOC is also proposing a change in defining when an individual is substantially limited in the major life activity of working. Although Congress did specifically direct the EEOC to consider the “substantially limited” language and meaning, it did not mention a need to change the language related to “working.” The EEOC proposes that instead of demonstrating that one is unable to perform a “range or class of jobs,” an ADA plaintiff must only show that her condition renders her unable to perform a “type of work.” The EEOC provides examples of “type of work” to include clerical work, assembly line work, or law enforcement.
Finally, the proposal includes several specific examples of “major life activities” and “major bodily functions” beyond what the statute itself provides. For example, the EEOC includes bending, reading, and communicating to its current non-exhaustive list of major life activities. It also includes conditions affecting the hemic, lymphatic, and musculoskeletal systems to the list of major bodily functions.
These potential changes are significant for employers as they would make it easier for individuals to establish a disability under the ADA. We will update you when the proposed regulations are published and are open for public comment. In the meantime, the underlying changes enacted by the ADA Amendments Act are already in effect so continue your best practices of considering each employee’s needs and requests individually and being reasonable and accommodating in your responses.
Barran Liebman LLP
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