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EEOC’s Proposed Regulations Interpreting Americans With Disabilities Act Released for Public Comment

Labor & Employment Alert Otto W. Immel

The EEOC has issued a Notice of Proposed Rulemaking revising its ADA regulations to conform with the ADA Amendments Act of 2008 ("ADAAA"), which was signed into law by President Bush last year. The proposed regulations and accompanying interpretive guidance debuted in the Federal Register on September 23, 2009, commencing the 60-day period during which the EEOC invites public comment.1

As expected, the proposed changes expand the meaning of "disability" by revising and clarifying key terms such as "substantially limits," "major life activity" and "regarded as." They also go so far as to list specific impairments that will "consistently" qualify as disabilities under the ADA. Most importantly, however, the EEOC's much-anticipated guidance provides practical illustrations to assist employers in interpreting and complying with the newly expanded ADA.

Highlights of Proposed Regulations and Interpretive Guidance

New "Substantially Limits" Definition

An impairment will now satisfy the "substantially limited" requirement "if it 'substantially limits' an individual's ability to perform a major life activity as compared to most people in the general population." The limitation at issue no longer needs to "significantly" or "severely" restrict a major life activity. The proposed regulations emphasize that "substantially limits" will be interpreted broadly and without extensive analysis to effectuate the ADAAA's intent to change the focus from whether an individual meets the "disability" definition to whether discrimination occurred. In its interpretive guidance, the EEOC also elaborates that the comparison between the individual's abilities and those of "most people" is a common-sense approach that should not entail significant analysis.

However, the proposed regulations also clarify that "temporary, non-chronic impairments of short duration with little or no residual effects" will not typically qualify as disabilities. A non-exhaustive list of examples includes the common cold, seasonal or common flu, a sprained joint, minor and non-chronic gastrointestinal disorders or abroken bone expected to heal completely. The EEOC's interpretive guidance adds to this list appendicitis and seasonal allergies that do not substantially limit a major life activity when active.

The durational component required to establish a covered disability, however, is made less clear by the proposed regulations addressing the "regarded as" prong of the disability definition. Under the proposed regulations, one cannot assert a covered "disability" based on being "regarded as" disabled if the impairment involved is both "transitory (lasting or expected to last for six months or less) and minor." Thus, according to the regulations, an impairment could substantially limit a major life activity even if expected to last less than six months, as long as it is not considered one of the "temporary, non-chronic impairments of a short duration with little or no residual effects" specifically excluded from coverage under any prong of the disability definition. At what point an impairment with an expected duration of less than six months is considered "temporary" and not covered is not addressed.

Expanded "Major Life Activities" Definition

The proposed regulations define "major life activities" as "those basic activities, including major bodily functions, that most people in the general population can perform with little or no difficulty." The major life activities of sitting, reaching, and interacting with others are added to the ADAAA's non-exhaustive list. "Major bodily functions" added to the list include hemic, lymphatic, musculoskeletal, special sense organs and skin, genitourinary and cardiovascular systems. The EEOC also provides examples of how certain impairments affect major bodily functions, such as epilepsy (neurological function), diabetes (endocrine function), cancer (normal cell growth function), HIV/AIDS (immune and reproductive functions) and sickle cell disease (hemic system).

Clarification on the Major Life Activity of Working

The proposed regulations change the analysis applicable to the major life activity of working and purport to provide a more straightforward approach to determine whether someone is substantially limited in "working." Rather than demonstrate exclusion from a "class or broad range of jobs," an individual need only show that the impairment "substantially limits the ability to perform, or meet the qualifications for, the type of work at issue."The "type of work" includes the individual's current job, or the one applied for, and those with similar requirements. It is determined by reference to the nature of the work the individual is substantially limited in performing as compared to others with comparable skills, such as commercial truck driving, assembly line, food service, clerical work or law enforcement jobs. Alternatively, it can be determined by reference to job-related requirements, such as jobs requiring prolonged sitting or standing, repetitive bending, reaching or manual tasks or frequent or heavy lifting. The proposed regulations further explain the "type of work" inquiry through several examples involving work restrictions common in certain industries, such as prolonged standing (retail industry) and manual task restrictions resulting from carpal tunnel (machine operator jobs).

The interpretive guidance accompanying the proposed regulations clarifies that an individual's ability to obtain similar employment with another employer is not dispositive of whether the individual is substantially limited in working. Likewise, someone who is substantially limited in a type of work will be substantially limited in working even if qualified to perform another type of work.

The regulations foresee that this inquiry will only become necessary in the rare case where a disabled individual is not substantially limited in a major life activity other than working. Working may be the only major life activity, for example, in those cases where the impairment limits only the individual's ability to perform certain required functions for the job they hold or for which they are applying.

Prohibition on Consideration of Mitigating Measures

Consistent with the ADAAA's clear mandate, the proposed regulations prohibit consideration of mitigating measures in determining whether an individual is disabled (with the exception of "ordinary eyeglasses or contact lenses"), even if those measures completely eliminate any limitations otherwise caused by an impairment. The proposed regulations also add "surgical interventions" that do not permanently correct an impairment to the statute's non-exhaustive list of mitigating measures.

The EEOC's interpretive guidance provides helpful clarification on this point by confirming for employers that while prohibited from considering mitigating measures in determining whether an individual is disabled, they can consider whether use of mitigating measures would eliminate the need for reasonable accommodation.

Clarification on Treatment of Episodic Impairments or Those in Remission

The proposed regulations provide some examples of impairments, whether episodic or remissive, that should be treated as disabling if they substantially limit a major life activity when active, including epilepsy, multiple sclerosis, hypertension, asthma, diabetes, cancer, depression, bipolar disorder and post-traumatic stress disorder.

Examples of Impairments That Will Consistently Meet the Definition of Disability

Arguably, the most significant and concrete guidance provided by the proposed regulations is the list of impairments that will now "consistently" meet the definition of disability. These include deafness, blindness, intellectual disability, missing limbs, mobility impairments requiring use of a wheelchair, 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.

The stated rationale is that certain characteristics associated with the listed impairments should make the individualized assessment of the limitations on a person quick and easy and will result in finding the person substantially limited in a major life activity almost every time. However, the EEOC is careful to specify that this list (and all the other examples provided throughout the proposed regulations) is non-exhaustive, and omission of a particular impairment should not create a negative implication.

The regulations also acknowledge that some impairments may be disabling for some individuals but not others. Therefore, this requires somewhat more analysis to determine whether they are substantially limiting for a particular individual. Listed examples include asthma, high blood pressure, back impairments and learning disabilities. However, the regulations caution that the level of analysis required still should not be extensive given the broad coverage intended by the ADAAA.

New Definition for "Regarded As"

Under the proposed regulations, an individual can satisfy the "regarded as" prong of the disability definition merely by showing that the employer takes a prohibited action based on the individual's actual or perceived impairment, whether or not it limits or is perceived to limit a major life activity. The EEOC further clarifies that a prohibited action based on an actual or perceived impairment includes an action based on the use of mitigating measures for, or the symptoms of, an impairment, even when the employer is unaware of the underlying cause. To illustrate, the regulations explain that an employer that refuses to hire someone with a facial tic regards the individual as having a disability, even though the employer does not know that the tic is caused by Tourette's Syndrome.

As called for by the ADAAA, the regulations specifically exclude impairments that are transitory (six months or less) and minor from the "regarded as" definition. The regulations also make very clear that there is no duty to accommodate individuals "regarded as" disabled.

Clarification of "Record of" Definition

The proposed regulations provide examples of facts sufficient to establish a "record of" disability, which requires that an individual have a history of, or be misclassified as having, a substantially limiting impairment. For example, according to the EEOC, an applicant who previously received treatment for prostate cancer and whose doctor indicated he no longer had cancer, nevertheless has a "record of" a substantially limiting impairment.

The new interpretive guidance further clarifies that proof of an employer's reliance on a record of disability is not necessary to establish coverage under the "record of" prong of the definition. Although, whether the employer relied on the record of disability when making the employment decision is, of course, relevant to the merits and the ultimate issue of whether the employer indeed discriminated on the basis of disability.

Substantive Changes & Guidance But No Big Surprises

While the text of the ADAAA foreshadowed the most significant changes and additions to the EEOC's proposed regulations and guidance, the EEOC also delivers some of the clarification and practical illustrations hoped for. As a whole, the new regulations take seriously Congress's mandate that the ADA be interpreted broadly so as to extend its protections to a much larger class of individuals.

Notably, the EEOC's Notice of Proposed Rulemaking attempts to forecast the economic impact of the new regulations. While it concludes that benefits exceed costs, the EEOC admits the studies conducted reveal "a large variance" in the estimates of the mean cost for providing accommodations, ranging from $462 to $1,434. The EEOC maintains that the impact of the new regulations "will very likely be below the $100 million threshold for 'economically significant' regulations" but specifically requests public comment to determine the necessity of further analysis.

Written comments on the proposed regulations and interpretive guidance can be submitted electronically to the EEOC  on or before November 23, 2009. The EEOC has also published a question-and-answer guide discussing the impact of the new rules.

For more information about the EEOC's proposed regulations or their effect on disability discrimination, the ADA accommodation process, or otherwise, please contact Otto Immel at 239-659-5041 / [email protected], Pamela Ploor at 414-277-5661 / [email protected] or your Quarles & Brady attorney.

1 The text of the Notice of Proposed Rule Making can be found here.
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