EEOC Proposes New ADA Rules

The EEOC has just announced new rules for the ADAA (lots of alphabet soup today), triggering the 60-day notice and comment period. Interested parties will have until November 23 to provide comments on the proposed rules. From a notice by Thompson Publishing Corp.:

The regulations implement the ADA Amendments Act of 2008, which expanded the ADA's protections. Notably, the commission created a list of "certain impairments that will obviously be substantially limiting." In addition to listing impairments that are rarely disputed, the rules include impairments such as autism, cancer, cerebral palsy, diabetes, epilepsy, HIV and AIDS, major depression and post-traumatic stress disorder.

The regulations also expand on the list of major life activities spelled out in the Amendments Act and add several items to the law's list of major bodily functions. In addition, they offer a list of impairments that could likely qualify as disabilities under the law's new provision for impairments that are episodic or in remission. Alternatively, the rules list impairments that usually will not be disabilities, such as broken limbs that heal normally, sprained joints, appendicitis and seasonal or common influenza.

An individual still must show a "substantial limitation" on a major life activity to have a disability, but the proposed rules replace the former "condition, manner and duration" standard. Now, 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" -- as opposed to those "similarly situated," as some courts required in the past. Furthermore, the major life activity of working is now considered substantially limited when an impairment limits an individual's ability to perform the "type of work" at issue. This removes the former "broad range or class of jobs" performance standard.

Also, as required by the Amendments Act, the regulations require that disability determinations be made without regard to mitigating measures such as medication or mobility devices. The commission expanded this list in its rules by including "surgical intervention."

The regulations may be viewed online at http://edocket.access.gpo.gov/2009/E9-22840.htm. The public may submit comments via mail or fax to the locations specified in the proposal, or through http://www.regulations.gov. The EEOC issued a question-and-answer document on the regulations, available at http://www.eeoc.gov/policy/docs/qanda_adaaa_nprm.html.

 Hat Tip: Kathryn McGovern

MM