EEOC Publishes Proposed to Employment Provisions of ADA

Just about a month ago, the EEOC issued its proposed regulations for the implementation of the employment provisions of the Americans with Disabilities Act (ADA). To refresh your memory and in case you aren't up to date on the ADA, this federal law was recently amended and dramatically changed. The Americans with Disabilities Amendments Act (ADAAA) was signed into law in August 2008 by the former President Bush and went into effect on January 1, 2009. The purpose of the Amendments Act was to expand the coverage of the ADA and return it to its original intent, after a series of Supreme Court decisions that severely limited the protections offered.

One of the big changes in the Amendments Act was an expanded definition of who is disabled. The basic definition remains the same (an individual with a physical or mental impairment that substantially limits a major life activity), however changes in the way that this definition is interpreted are intended to give greater protection. One way that this is done in the ADA is through an expanded, non-inclusive list of "major life activities" that can be substantially limited in order to qualify an individual as disabled. There are "outside" activities such as walking, working, talking, breathing and seeing, as well as "inside" activities, major bodily functions such as the digestive, endocrine or vascular system that can be limited as well. Section 1630.2(j)(5) of the proposed regulations include a list of conditions that would be per se disabilities. These include autism, cancer,
cerebral palsy, diabetes, epilepsy, HIV or AIDS, multiple sclerosis and muscular dystrophy, and individuals with depression, bipolar disorder, obsessive-compulsive disorder, posttraumatic stress disorder, or schizophrenia.

No courts have ever stated that a medical condition was automatically qualifying as a disability, so this proposed regulation is a big step forward for plaintiffs who in the past struggled to show that they were disabled (in fact, prior to the passage of the ADAAA, about 97% of the disability cases were decided in favor of the employer, often on the point of whether an individual was disabled). I think this proposed reg is an excellent way to ensure that the spirit and intent of the Amendments Act is not again eviscerated by the courts.