On Sept. 23, 2009, the Equal Employment Opportunity Commission (EEOC) issued its Notice of Proposed Rulemaking (NPRM) to revise its current regulations under Title I of the Americans with Disabilities Act, 29 C.F.R. part 1630, and implement the employment provisions of the ADA Amendments Act of 2008 (ADAAA). EEOC approved the NPRM on Sept. 16, 2009, by a split vote of 2-1 (two commissioner seats presently are vacant). Throughout the NPRM, EEOC emphasizes (on no fewer than five occasions) Congress’ mandate that the ADAAA be construed in favor of broad coverage and that the determination of whether an individual has a disability should not require extensive analysis. In addition to setting forth proposed revisions to EEOC’s regulation, the NPRM also sets forth proposed revisions to EEOC’s interpretive guidance, which is published as an appendix to its ADA Title I regulations.
Several provisions in the NPRM highlight EEOC’s expansive interpretation of the ADAAA. First, even though the ADAAA was the product of extensive negotiations in which all the interested parties agreed that the statute would not include a list of per se disabilities, the current NPRM includes a list of conditions that EEOC deems will “consistently meet” the definition of disability — such as deafness, blindness, intellectual disability (formerly termed mental retardation), partial/missing limbs, mobility impairments resulting in the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, posttraumatic stress disorder, obsessive compulsive disorder and schizophrenia. It also provides examples of impairments that require "more analysis" in that they may be disabling for some individuals but not for others — such as asthma, high blood pressure, learning disabilities, carpal tunnel, coronary disease, psychiatric impairments (such as panic disorder, anxiety disorder and some forms of depression other than major depression), hyperthyroidism and back or leg impairments.
EEOC’s decision to include a per se list of disabilities is likely to generate significant debate. Throughout the legislative negotiations over the ADAAA itself, business and employer advocates objected strongly to the inclusion of any per se list as being contrary to the ADA's requirement of an "individualized assessment," and only agreed to support the final bill if the per se list was removed. EEOC has concluded that due to certain characteristics associated with the listed impairments, an individual assessment can be conducted quickly and easily, and will consistently result in a determination that the person is substantially limited in a major life activity. There likely will be significant debate not only with respect to whether the final rule should include such a list, but also over which conditions should be included in the per se list.
Second, EEOC's attempt to define "substantially limits" post-ADAAA stresses its far-reaching interpretation of that term, but leaves employers and courts with little concrete guidance as to which impairments (if any, aside from minor transitory impairments) do not qualify as disabilities. The NPRM provides that “an impairment is a disability if it ‘substantially limits’ the ability of an individual to perform a major life activity “as compared to most people in the general population.” While the NPRM makes clear what “substantially limits” does not mean (i.e., an impairment need not severely or significantly restrict a major life activity in order to be substantially limiting and temporary, non-chronic impairment of short duration with little or no residual effects, such as the common cold or flu, are not substantially limiting), it does not contain any clear statement of what “substantially limits” does mean. EEOC has jettisoned the current regulatory language defining “substantially limits” in reference to the condition, manner and duration under which an individual can perform a major life activity and the current regulatory construct of weighing factors such as the nature and severity of the impairment, the duration or expected duration of the impairment, and the permanent or long term impact of the impairment. Instead, the NPRM sets forth six "rules of construction" to govern the assessment of whether an impairment is substantially limiting, most of which are mere recitations of provisions from the ADAAA itself:
- "Substantially limits" shall be construed broadly to the maximum extent permitted by the terms of the ADA and should not require extensive analysis.
- An individual whose impairment substantially limits a major life activity need not also demonstrate a limitation in the ability to perform activities of central importance to daily life.
- An impairment need not substantially limit more than one major life activity to be considered a disability.
- The comparison of an individual’s limitation to the ability of most people in the general population often may be made using a "common sense standard, without resorting to scientific or medical evidence.”
- The exception for transitory and minor impairments under the “regarded as” prong of the definition of disability does not establish a durational minimum under the “actual disability” or “record of disability” prongs of the definition; impairments that last, or are expected to last, six months or less still may be substantially limiting.
- In determining whether an individual has a disability, the focus should be on how a major life activity is substantially limited and not on what an individual can do in spite of an impairment.
Throughout the NPRM, EEOC has included examples intended to aid in the interpretation of “substantially limits.” While such examples illustrate application of the foregoing rules of construction, they offer employers little guidance in discerning the threshold point at which an impairment qualifies as “substantially limiting."
The NPRM also addresses the following issues:
- Mitigating Measures: As specified in the ADAAA, the ameliorative effects of mitigating measures (except for ordinary eyeglasses and contact lenses, which are defined as those intended to fully correct visual acuity or eliminate refractive error) cannot be considered in determining whether an impairment is substantially limiting. The negative side effects of mitigating measures (e.g., the side effects of medication) are considered in determining if the impairment is substantially limiting. The NPRM provides numerous examples of mitigating measures, including medication, medical supplies, equipment or appliances, low-vision devices, prosthetics, hearing aids, cochlear implants, mobility devices, oxygen therapy equipment and supplies, assistive technology, reasonable accommodations, and auxiliary aids and services. Mitigating measures also can include “learned behavior or adaptive neurological modifications,” and surgical interventions (except for those that permanently eliminate an impairment).
- Substantial Limitation in the Major Life Activity of Working: An ADA plaintiff need establish only that the impairment renders him/her unable to perform a “type of work,” as opposed to a “range or class of jobs.” “Type of work” includes jobs with similar qualifications or job-related requirements, and also can be determined by reference to the nature of the work (e.g., commercial truck driving, assembly line jobs, food service jobs, clerical jobs, or law enforcement jobs) or to job-related requirements, such as repetitive bending, reaching or manual tasks; repetitive or heavy lifting; prolonged sitting or standing; extensive walking; driving; working under certain conditions, such as in workplaces characterized by high temperatures, high noise levels or high stress; or working rotating, irregular or excessively long shifts. In its interpretive guidance, EEOC emphasizes that the statistical analysis previously required by some courts is not necessary and that expert testimony regarding the types of jobs in which the individual is substantially limited generally will not be necessary. Further illustrating the broad construction the EEOC has given to the term “disability,” the NPRM expressly states that an individual with a disability usually will be substantially limited in another major life activity, generally making it unnecessary to consider whether the individual is substantially limited in working.
- Major Life Activities: The NPRM defines “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 and conforms EEOC’s regulations to include the lists of major life activities and major bodily functions set forth in the ADAAA. EEOC also has included activities and bodily functions not referenced in the ADAAA, such as reaching, sitting, and interacting with others, as well as functions of the hemic, lymphatic and musculoskeletal systems.
- “Regarded as” Having a Disability: An individual is regarded as having a disability if that individual is subjected to a prohibited action based on an actual or perceived impairment, irrespective of whether the impairment limits or is perceived as limiting a major life activity. An employer need not have believed the individual was substantially limited in any major life activity. Impairments that are both transitory (defined as lasting or expected to last six months or less) and minor cannot serve as the basis for “regarded as” claims, but this exception does not apply to claims based on an actual disability or “record of” a disability. Prohibited actions based on symptoms of an impairment or on the use of mitigating measures also can establish a “regarded as” claim, even if the employer is not aware of the nature of the underlying impairment.
- Reasonable Accommodation: Employers are not required to provide reasonable accommodation to individuals who are only “regarded as” having a disability.
- Qualification Standards and Tests Related to Uncorrected Vision: Employers may not use qualification standards and tests based on an individual’s uncorrected vision unless the standard or test is job-related and consistent with business necessity. A person need not be an individual with a disability in order to challenge such standards or tests.
The NPRM provides a 60-day period for public comments. Accordingly, public comments must be submitted no later than Nov. 23, 2009. In addition to issuing the NPRM, EEOC also has issued a “Q&A” document that answers certain questions about the NPRM. The Q&A document is available at http://www.eeoc.gov/policy/docs/qanda_adaaa_nprm.html.
The NPRM underscores the expansive interpretation EEOC is applying to the ADAAA, which took effect on Jan. 1, 2009. Accordingly, employers need to exercise caution in making employment decisions, including decisions regarding reasonable accommodation, to insure that they do not run afoul of the ADAAA.