EEOC Takes Step Towards Expanding Disability Accommodation Rights in Light of the ADA Amendments Act

On June 17, 2009, the Equal Employment Opportunity Commission (EEOC) came one step closer to updating its regulations interpreting the Americans with Disabilities Act ("ADA") in light of recent changes made by the ADA Amendments Act. The ADA Amendments Act became effective January 1, 2009, and substantially broadens the number of individuals who fall within the scope of ADA's protections by lowering standards an employee may satisfy to qualify as "disabled" within the meaning of the ADA.

By a 2-to-1 vote, the EEOC approved changes to its regulations to implement the new, more expansive standard of disability under the ADA Amendments Act. While the changes are subject to further regulatory approval and possible revision based on public comment before they become final, the EEOC maintains that its current proposal will fulfill Congress's intent that the ADA should be "construed in favor of broad coverage" and should not require employees to satisfy an extensive analysis before qualifying as disabled, and therefore entitled to reasonable accommodation.

The EEOC's proposal makes it easier for employees to satisfy of the ADA's threshold requirements in several important respects. Some of the more significant revisions the EEOC proposes include:

• Greatly expanding the definition of "major life activities." To qualify for protection under the ADA, an employee must still be substantially limited in some major life activity. Under the EEOC's proposal, the concept of major life activity would be expanded to include activities such as bending, reading, reaching, sitting, interacting with others, and communicating. Additionally, in accordance with the ADA Amendments Act's provision that conditions affecting major bodily functions qualify as major life activities, the EEOC's proposal provides that conditions that substantially limit functions such as digestive, reproductive, neurological, hemic, lymphatic, and musculoskeletal systems also qualify as disabilities.
• Lowering of the standard needed to show that an employee is "substantially limited" in a major life activity. While employees must still show a "substantial limitation" in a major life activity, the EEOC's proposal expands the concept of what constitutes a "substantial" limitation and specifically provides that a condition need not significantly or severely restrict performance of any major life activity to be substantially limiting. The proposal directs courts to apply a "common sense" comparison of the impaired individual's limitations to those of the average person in the population. According to the EEOC, this change will make it easier for employees to prove a substantial disability because there will be less need to support such a claim with scientific or medical evidence. The proposal does provide that temporary impairments that do not have any significant long-term effect will not qualify as substantially limiting, but also states that an impairment that lasts "several months" (which appears to mean a lesser time period than six months) is not considered temporary.
• Establishing certain medical conditions as per se disabilities under the ADA. In a substantial departure from past practice, the EEOC's proposal lists certain conditions that would always qualify as a substantial limitation on a major life activity, thus bringing the affected individual within the protection of the ADA. Those conditions include cancer, diabetes, HIV/AIDS, major depression, bipolar disorder, post-traumatic stress disorder, autism, and schizophrenia.
• Easing the employee's burden of proving a substantial limitation in the life activity of working by requiring only that the employee be unable to perform a "type of work" such as assembly line, clerical, or food service work rather than a broad range or class of jobs, which was the previous standard.
• Adding "surgical intervention" to the list of mitigating measures (such as medication and assistive devices) that can no longer be taken into account when determining whether an individual's medical condition rises to the level of disability.

The EEOC's approval of the proposed rule changes was not without controversy. One of the three Commissioners voted against the proposal on the basis that the revisions went beyond what Congress intended when passing the ADA Amendments Act.

Discussion over the proposed rule changes will continue in the weeks ahead. The proposal must be cleared by the federal Office of Management and Budget before a public comment period will begin. The EEOC may or may not revise its proposals based on comments received. Once finalized, the question will be whether courts will enforce the various provisions as correct interpretations of the ADA, as amended. Courts defer to EEOC regulations that are reasonable constructions of the law, but are not bound to follow regulations that are contrary to law.

With the ADA Amendments Act already in effect, employers should be extremely cautious in denying accommodation requests based on medical condition on grounds that the person requesting assistance is not disabled under the ADA. The revised standard will shift the focus of many ADA cases from whether the plaintiff was disabled as defined under the ADA to whether the employee required some form of accommodation to perform an essential job function; what form of accommodation was required; and whether an accommodation that was requested but denied would have placed undue hardship on the employer.