EEOC Proposed Regulations Signal Broad Expansion of ADA

September 28, 2009

The EEOC has finally published its long-awaited and controversial proposed regulations to implement the ADA Amendments Act of 2008 (sometimes referred to as the "ADAAA"). While these regulations are not the final regulations, they impact employers now because:

What's Happened.

The ADAAA exponentially expanded the number of employees and applicants who are covered and protected by the Americans with Disabilities Act. We communicated these changes and how they could impact your business in an article issued in October 2008, which you can find by clicking here. A lot has happened since then.

Proposed Regulations Go Further Than Expected and Warranted

Specific examples in the regulations of people now covered by the ADAAA and, therefore, entitled to a reasonable accommodation, include: an employee with a 20-pound lifting restriction, people with learning disabilities, depression, bi-polar disorder, carpel tunnel syndrome, epilepsy, diabetes, hypertension, cancer, asthma, restrictions of no repetitive bending and the list goes on. This is true even if the individual is taking medication or had surgery to improve or control their condition or even if their cancer is in remission.

EEOC Provides Alarming Examples To Illustrate Lower Standard for "Substantially Limited"

The ADAAA, at least on its face, still requires that an individual show he/she has a "disability," and "disability" is still defined as: (1) an individual with a physical or mental impairment that substantially limits a major life activity; (2) an individual with a record of such an impairment; or (3) an individual who is regarded as having such an impairment. Previously, "substantially limits" was defined as "severely or significantly restricts." The ADAAA rejected this definition as being "too demanding" and directed the EEOC to define "substantially limits" in its implementing regulations.

The proposed regulations do not provide a new definition for "substantially limits." Instead, they provide "rules of construction" and some alarming "examples" that are supposed to aid us in determining whether an individual is "substantially limited" in performing a major life activity. One of these examples is an individual with a lifting restriction of 20 pounds. The regulations state that such an individual is "substantially limited" in the major life activity of lifting.

Equally concerning are the statements that – (1) you should compare the individual to "most people in the general population," (2) this comparison should be made using a "common-sense standard" and without resorting to scientific or medical evidence, and (3) an impairment may substantially limit a major life activity even if it lasts, or is expected to last, for fewer than six months.

Major Life Activities Virtually Limitless

The ADAAA lists 18 different activities and 18 bodily functions that qualify as major life activities. While these lists were not intended to be exclusive, the EEOC has now added reaching, sitting and "interacting with others," suggesting that it will accept almost anything as a major life activity.

Substantially Limited in "Working" Easier to Establish

An individual no longer needs to show that he/she is substantially limited in performing a "class or broad range of jobs." It is enough if the worker cannot perform, "the type of work at issue." The "type of work at issue" includes the job the individual has been performing, or for which the individual is applying, and jobs with similar qualifications such as commercial truck driving, assembly line jobs, food service jobs, clerical jobs, or law enforcement jobs.

An example provided by the EEOC is a person with restrictions of no repetitive bending or heavy lifting. Under the proposed regulations, this person is substantially limited in working even if he/she has other skills that would qualify him/her for jobs that do not include these requirements.

Mitigating Measures Include the "Kitchen Sink"

You cannot consider "mitigating measures," i.e., things that improve or control a person's impairment, when determining whether a person is "disabled" under the ADAAA. "Mitigating measures" now include not only medications and prosthetic limbs, but also surgical interventions and learned behavioral adaptations. For episodic or conditions that are in remission, you now look at those conditions as if they were active or not in remission. The good news here is that while you cannot consider mitigating measures when determining whether a person is disabled, you can consider mitigating measures that a person is actually using when analyzing reasonable accommodations for that person.

EEOC Lists Specific "Disabilities"

The EEOC has provided a list of conditions, in the proposed regulations, that they say will consistently meet the new definition of "disability." Those conditions include autism, cancer, HIV or AIDS, multiple sclerosis, major depression, bi-polar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, epilepsy, and diabetes.

EEOC Urges "Broad Coverage to the Maximum Extent Permitted by the Terms of the ADA"

The EEOC emphasizes that the ADAAA is to be construed broadly, in favor of covering as many individuals as possible. The EEOC also stresses that the determination of whether an individual has a disability "should not demand extensive analysis." The focus should be on reasonable accommodation or whether discrimination occurred – not whether an employee or applicant is "disabled" and, therefore, covered by the ADAAA.

This approach will not change in the final regulations. We expect the EEOC to be extremely aggressive in all disability cases going forward, and to stretch the language of the ADAAA far beyond what the courts ultimately will allow.

You can find the full text of the EEOC's regulations here.

If you have any questions about the impact of the ADAAA to your business, please contact Katie Wright, John Lovett or any other member of the Frost Brown Todd Labor and Employment Practice Group.


1Frost Brown Todd can assist you in drafting and submitting any comments to the EEOC.