The Equal Employment Opportunity Commission has published a proposal to revise its regulations to align them with a law that makes it easier for individuals seeking protection under the Americans with Disabilities Act (ADA) to establish that they have a disability.
The changes to the EEOC's ADA regulations were necessary because of the ADA Amendments Act of 2008 (ADAA), which went into effect in January 2009.
Under the ADAA, the definition of a “disability” continues to be an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, the law changed the way key terms under that definition should be interpreted.
Specifically, the proposed rule:
- States that the definition of “disability” must be interpreted broadly.
- Revises the portion of the regulations defining the term “substantially limits” to provide 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 nonexhaustive 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 ADAA.
- 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 ADAA, 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.The proposed rule provides that actions based on an impairment include actions based on symptoms of an impairment, and the EEOC invites public comment on this point.
- Provides that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation.
- 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.
The EEOC published a Notice of Proposed Rulemaking in the September 23, 2009, edition of the Federal Register and is seeking public comment for 60 days.
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