On September 23, 2009, the Equal Employment Opportunity Commission (EEOC) published proposed regulations in the Federal Register to implement the equal employment provisions of the Americans with Disabilities Act (ADA), as amended by the ADA Amendments Act of 2008. The EEOC also published questions and answers about the proposed regulations.
The proposed regulations provide that the definition of “disability” shall be interpreted broadly and revise the portion of the regulations defining the term “substantially limits” by providing that a limitation need not “significantly” or “severely” restrict a major life activity. The proposed changes to the regulations also delete reference to the terms “condition, manner or duration” under which a major life activity is performed.
The proposed regulations expand the definition of “major life activities” through two non-exhaustive lists. The first list includes activities such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others and working. The second list includes major bodily functions, such as functions of the immune system, special sense organs and skin, normal cell growth and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal and reproductive functions.
The proposed rule also provides that the definition of “regarded as” is changed so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity and instead provides that an applicant or employee who is subjected to an action prohibited by the ADA (such as a failure to hire, denial of promotion or termination) because of an actual or perceived impairment will meet the “regarded as” definition of disability, unless the impairment is both transitory and minor.
The proposed regulations also provide that actions based on an impairment include actions based on symptoms of an impairment and the EEOC invites public comment on this point. Furthermore, the proposed rules provide that qualification standards, employment tests or other selection criteria based on an individual’s uncorrected vision shall not be used unless shown to be job-related for the position in question and consistent with business necessity.
The regulations can be found at: http://edocket.access.gpo.gov/2009/pdf/E9-22840.pdf and the questions and answers can be found at: http://www.eeoc.gov/policy/docs/qanda_adaaa_nprm.html
There is a 60-day comment period. Written comments can be submitted to Stephen Llewellyn, Executive Officer, Executive Secretariat, Equal Employment Opportunity Commission, 131 M Street, NE, Suite 4NW08R, Room 6NE03F, Washington, DC 20507. The EEOC will also accept faxes of 6 or fewer pages at (202) 663-4114. Emails can be submitted at http://www.regulations.gov, which is the Federal eRulemaking portal. Follow the instructions online for submitting comments. Copies of comments submitted by the public will be available to the public.
