On September 16, 2009, the Equal Employment Opportunity Commission (EEOC) approved a proposal to update its regulations interpreting the Americans with Disabilities Act (ADA). Publication of the proposed regulations, which is expected next week, will trigger a 60-day public comment period, giving employers and others their first opportunity to formally respond to the proposed revisions.

The process for updating the ADA regulations began in June, when the EEOC first issued its proposal to revise its regulations to reflect changes made by the ADA Amendments Act, which President Bush signed into law last year. Among other things, the proposed changes would:

  • Make it easier for individuals to meet the threshold requirement of demonstrating that they are substantially limited in a "major life activity" by expanding the list of major life activities to include things like bending, reading, reaching, sitting, interacting with others and communicating. Further, the proposed rules would make it easier for an employee to show that he or she is "substantially limited" in a major life activity by directing courts to apply a “common sense” comparison of the impaired employee's limitations to those of the average person in the population, applying the standard that a condition need not significantly or severely restrict performance of any major life activity to be substantially limiting.
  • Establish that specific medical conditions, such as epilepsy, cancer, AIDS and various kinds of psychiatric conditions, are per se disabilities under the ADA — even if they are in remission or treated with medication — so long as they would "substantially limit" a major life activity when active.
  • Add “surgical intervention” to the list of mitigating measures (such as medication and assistive devices) that can no longer be taken into account when determining whether an individual’s medical condition rises to the level of disability.

Since June, the proposed changes have been subject to review by the Office of Management and Budget and other federal agencies. The EEOC's decision to formally publish its proposed changes marks the next significant step in the review process. When the 60-day period for public comment ends, the EEOC may revise its proposal in response to the comments it receives or adopt the regulations as issued. Meanwhile, because the ADA Amendments Act is already in effect, employers should exercise caution and take into account the proposed regulations when deciding whether someone is disabled under the ADA.