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LABOR & EMPLOYMENT LAW — 09/17/09

EEOC approves proposed ADAAA regulations

By a 2-1 vote on September 16, 2009, the Equal Employment Opportunity Commission (EEOC) approved a Notice of Proposed Rulemaking (NPRM) revising its regulations to provide that an individual seeking protection under the Americans with Disabilities Act (ADA) establish that he or she has a disability consistent with the original, expansive intent of Congress when it enacted the ADA in 1990. The NPRM provides a 60-day period for public comment.

The proposed rule makes several significant changes to the definition of the term “disability” necessitated by enactment of the ADA Amendments Act of 2008 (ADAAA). The NPRM will be posted on the Commission’s website, along with a question-and-answer guide about the proposal and instructions for submitting public comments, when the NPRM is submitted for publication in the Federal Register, according to an agency source.

Background. The Americans with Disabilities Act (ADA) was signed into law in July 1990. The EEOC is responsible for enforcing Title I of the ADA, which prohibits employment discrimination against individuals with disabilities. The statute requires employers to make reasonable accommodations to employees and job applicants with disabilities — defined as people with mental or physical impairments that substantially limit a major life activity, persons with a record of a disability, or who, while not actually disabled, are regarded as disabled.

The ADAAA, which was effective January 1, 2009, states that Congress expects the EEOC to revise its regulations to conform to changes made by the Act, and expressly authorizes the EEOC to do so. The new law rejected the holdings in several Supreme Court decisions and portions of EEOC’s ADA regulations that Congress believed construed the definition of “disability” too narrowly, preventing individuals with impairments such as cancer, diabetes, epilepsy, multiple sclerosis, muscular dystrophy, post-traumatic stress disorder, and bipolar disorder from bringing discrimination claims. The ADAAA and the proposed rule make it easier for an individual alleging employment discrimination based on disability to establish that he or she meets the ADA’s definition of “disability.” The ADAAA also modifies the Rehabilitation Act of 1973, which prohibits employment discrimination in the federal workforce on the basis of disability.

Revised rules. On June 17, the EEOC voted to adopt the rules changes, which then went to the Office of Management and Budget for review, and to federal agencies.

“Congress recognized that the intent of the ADA was being misread, that its goals were being compromised, and that action had to be taken,” said Acting EEOC Vice Chair Christine M. Griffin. “These regulations will shift the focus of the courts away from further narrowing the definition of disability, and put it back where Congress intended when the ADA was enacted in 1990.”

Consistent with the ADAAA, the proposed rule emphasizes that:

• the definition of disability — an impairment that poses a substantial limitation in a major life activity - must be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA, and should not require extensive analysis;

• major life activities include “major bodily functions”;

• mitigating measures, such as medications and devices that people use to reduce or eliminate the effects of an impairment, are not to be considered when determining whether someone has a disability; and

• impairments that are episodic or in remission, such as epilepsy, cancer, and many kinds of psychiatric impairments, are disabilities if they would “substantially limit” major life activities when active.

The proposed regulation also provides a more straightforward way of demonstrating a substantial limitation in the major life activity of working, and implements the ADAAA’s new standard for determining whether someone is “regarded as” as having a disability.

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

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