Last year Congress enacted the ADAAA, which was passed in response to Supreme Court decisions that congress felt interpreted the definition of “handicapped individual” or “disabled individual” too narrowly. It also sought to change the previous Equal Employment Opportunity Commission regulations that defined the term “substantially limits [a major life activity]” as “significantly restricts.” Congress stated that this definition imposed a standard that was higher than Congress intended when it passed the Americans with Disabilities Act of 1990, and it passed the ADAAA to provide “a clear and comprehensive national mandate for the elimination of discrimination and clear, strong, consistent, enforceable standards addressing discrimination by reinstating a broad scope of protection to be available under the ADA.” The ADAAA explicitly instructed the EEOC to revise its regulations on the ADA to define “substantially limits” in a way that better fit Congress’ intent. 

The EEOC has now issued its proposed revisions to those regulations. Titled “Regulations to Implement the Equal Employment Provisions of the Americans With Disabilities Act, as Amended,” the proposed revision: 

• Provides that the definition of “disability” shall be interpreted broadly;

• Redefines “substantially limits,” providing that a limitation need not “significantly” or “severely” limit a major life activity in order to be substantially limiting;

• Removes any reference to the “condition, manner or duration” under which a major life activity is performed to lower the level of limitation required in order to be protected under the Act;

• Expands the definition of “major life activities” to include “major bodily functions,” as well as activities such as reaching, bending, learning, concentrating and interacting with others;

• Provides that mitigating measures (other than ordinary glasses or contact lenses) shall not be considered in determining whether an individual is disabled;

• Provides that episodic impairments or impairments that are in remission are disabilities if the impairments would substantially limit a major life activity when active;

• Removes the requirement that an individual claiming to be “regarded as” disabled show that he or she was perceived to be substantially limited in a major life activity – instead a person will have been “regarded as” disabled if the employer perceived the individual to have any impairment, as long as the perceived impairment is not both transitory and minor;

• Provides that employment actions based on an impairment include actions based on the symptoms of an impairment;

• States that employers need not reasonably accommodate individuals who merely are “regarded as” disabled but who do not actually have a disability; and

• Provides 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 and consistent with business necessity.

The full text of the regulations is available at http://edocket.access.gpo.gov/2009/E9-22840.htm or http://edocket.access.gpo.gov/2009/pdf/E9-22840.pdf. The EEOC is accepting comments from the public on the proposed regulations until November 23, 2009. You may submit written comments to Stephen Llewellyn, Executive Officer, Executive Secretariat, Equal Employment Opportunity Commission, 131 M Street, NE., Suite 4NW08R, Room 6NE03F, Washington, DC 20507; by facsimile at (202) 663-4114; or online at http://www.regulations.gov.  

For more information about the proposed regulations, please contact Amy B. Royal, Esq. at (413) 586-2288. Amy may also be reached by e-mail at aroyal@rkesq.com.