On June 17, the Equal Employment Opportunity Commission voted to revise its regulations on the Americans with Disabilities Act to reflect changes made by the ADA Amendments Act of 2008. Jackson Lewis, a national employment law firm, analyzed the proposed rule changes that are now headed for review by other federal agencies, including the Department of Justice and the Office of Management and Budget, before publication in the Federal Register.
Jackson Lewis says that the EEOC proposed rules adopt a “new approach of including examples in the text [which] is intended to increase the likelihood that courts will defer to the EEOC’s interpretation of the law. It would increase the importance of employers becoming familiar with the specific examples in the regulations, if adopted.”
“The proposal cites activities and bodily functions expressly referenced in the ADAAA, but adds others to the regulations’ non-exhaustive list. These include bending, reading and communicating, three activities not previously recognized by the EEOC as ‘major life activities,’” the law firm says. Jackson Lewis notes that the proposed rule “significantly revises the standard for determining whether an impairment substantially limits a major life activity:” to be “substantially limiting,” an impairment need not severely restrict or significantly restrict performance of a major life activity.
According to the law firm, the EEOC proposal appears to move closer to developing a “per se” list of impairments that will always be disabilities “by identifying examples of impairments that are ‘obviously’ substantially limiting. This virtually guarantees that individuals with such impairments will always be within the class of people protected as ‘disabled.’ Impairments falling in this category range from blindness, deafness, intellectual disabilities (formerly ‘mental retardation’) to major depression, bipolar disorder, post-traumatic stress disorder, and schizophrenia.”
“The EEOC’s proposal apparently also provides a non-exhaustive list of impairments that are not ‘obviously’ substantially limiting, but ‘may’ be substantially limiting. They include asthma, high blood pressure, coronary artery disease, learning disabilities, a back or leg impairment, carpal tunnel syndrome, psychiatric disabilities, such as panic or anxiety disorder and forms of depression other than major depression, and hyperthyroidism,” the law firm says.
