Employers should take note of new regulations from the Equal Employment Opportunity Commission (EEOC). Specifically, on June 17, 2009, the EEOC approved proposed regulations that are in line with the statutory provisions of the ADA Amendments Act. This is important to employers because the proposed rules will substantially expand the EEOC's parameters when it comes to addressing disability-based claims.

The rules will expand the types of activities that will be considered "major life activities" under the ADA, such as reading, bending, communicating and major bodily functions (e.g., normal cell growth, functions of the immune system, digestive function, etc.). The proposed regulations also loosen the standard for determining whether a particular impairment "substantially limits" a major life activity. Specifically, the proposed rules stipulate that mitigating measures such as medication and prosthetic devices should not be taken into consideration in making this determination.

The proposal also adds a list of conditions that would be presumptively considered "substantially limiting" under the ADA, including: autism, cancer, cerebral palsy, diabetes, epilepsy, HIV and AIDS, major depression, bipolar disorder, post-traumatic stress disorder and schizophrenia. With respect to whether an impairment would substantially limit the major life activity of "working," the proposed regulations would place the focus on whether the individual is precluded from a "type of work" as opposed to a class or broad range of jobs. Clearly, these new standards make it far more likely that an individual would be considered disabled.

These regulations are currently in the initial stage of the regulatory process and must next go to the Office of Management and Budget for review. Only after this process is complete will the EEOC publish a Notice of Proposed Rule Making for public comment.

These regulations demonstrate enormous shifts in EEOC policy and employers should prepare for an increase in disability-based claims in the future. 

For additional information regarding the provisions of the ADA Amendments Act, please refer to Gardere's Nov. 1, 2008 client alert.