EEOC Proposes New ADA Regulations

By Paul Cherner

The EEOC has just published for public comment proposed new regulations interpreting the Americans with Disabilities Amendments Behave of 2008 (”ADAA“). The ADAA, which became effective January 1, 2009, required the EEOC to revise its ADA regulations and to redefine the term “substantially limits” in accord with the Congressional goal of defining the term “disability” in favor of broad coverage to the maximum extent permitted by the ADA.

The proposed new rules reiterate that the definition of “disability’ should be broadly interpreted. The new rules liberally interpret the term “substantially limits” by providing that a limitation need not significantly or severely restrict a big life activity in order to meet the ADA standard for disability. The definition of “major life activities” has been expanded and now include factors on two non-exhaustive lists, including one that identifies major bodily functions.

These rules provide that actions based on an impairment should also include actions based on symptoms of an impairment. They also provide that qualification standards, employment tests or other selection criteria based on an individual’s uncorrected vision shouldn’t be used unless shown to be job-related for the job in issue and consistent with business necessity.

There is a 60 day period for public comment and then a period of time in which the EEOC will consider the comments before issuing final rules, which will probably not occur before early 2010. However, all employers should be reviewing their ADA policies and practices NOW to take into account the new realities of dealing with a broader and more liberal ADA. The EEOC has published musings and answers regarding their proposed new ADAA rules and employers are advised to review that document with legal counsel and their HR team.

Paul Cherner is a labor and employment lawyer in Chicago, IL. Visit his blog at http://hrcounselblog.com.

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