Commentary: EEOC’s revised ADA regs expand statute’s grasp

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The ADA Amendments Act (ADAAA), which went into effect on Jan. 1, 2009, expressly authorized the EEOC to revise its regulations to conform to changes made by the Act. Simply put, the ADAAA significantly expands the ADA, and the EEOC’s proposed regulations are expansive.

Some of the proposals include the following:

• Expanding the definition of major life activities.

  The proposed regulations include two non-exhaustive lists of major life activities. The first list includes activities, such as caring for oneself, hearing, seeing, sitting and lifting, whereas the second list includes major bodily functions, some of which were not originally included by Congress.

• Providing that mitigating measures may no longer be taken into account.
  With the exception of eyeglasses or contact lenses, the positive effects from an individual’s use of one or more mitigating measures are ignored.

  However, the ADAAA allows consideration of the negative effects from use of a mitigating measure in determining if a disability exists. For example, the side effects of a medication taken to treat a medical condition will be taken into account in determining whether or not the underlying condition counts as a disability.
• Providing that conditions which are episodic or in remission may be considered a disability.
  Impairments that are episodic or in remission, such as epilepsy, cancer, and many kinds of psychiatric impairments, are disabilities if they would “substantially limit” major life activities when active.

• Revising the definition of working.

  The terms “class of jobs” and “broad range of jobs in various classes” have been eliminated and replaced with “type of work,” which the proposed regulation explains as “includ[ing] the job the individual has been performing or for which he is applying, and jobs that have qualifications or job-related requirements which the individual would be substantially limited in performing as a result of the impairment.”

  In other words, to be substantially limited in working, it now appears that an individual must be substantially limited in one type of job rather than various jobs.

• Revising the definition of “regarded as.”

  The definition no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity.

  Instead, it provides that an applicant or employee who is subjected to an action prohibited by the ADA (e.g., failure to hire, denial of promotion, or termination) because of an actual or perceived impairment will meet the “regarded as” definition of disability unless the impairment is both transitory and minor.

  This means that it will be much easier for an individual to prove that he or she was regarded as disabled.

  Setting forth a list of impairments that meet the definition of disability.

  This list includes autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, major depression and post-traumatic stress disorder, to name a few.

• Setting forth impairments that may be disabling for some but not for others.
  This list includes asthma, high blood pressure, learning disabilities, back and leg impairments, anxiety disorder and performing manual tasks, to name but a few.

All these proposed changes mean that the ADA will be broadly expanded. Many more individuals will automatically be considered to have disabling conditions.

However, there will still be a new level of confusion as to whether someone is covered under the ADA, as the proposed regulations still appear to utilize a case by case analysis in determining whether an individual is disabled. This will ultimately lead to further litigation.

As a result of the proposed changes it will also be easier for an individual to establish that he or she was “regarded as” disabled by his or her employer. It is therefore even more important for employers to ensure that certain buzzwords and phrases are avoided when discussing medical issues with their employees.

For instance, conditions should be referred to as “medical conditions,” not disabilities.

Employers may also want to avoid using legalistic phrases, such as “accommodate” and “undue hardship” when discussing an employee’s medical condition. Employers may want to consider whether their current ADA policies comply with the proposed regulations, as the EEOC will surely begin to apply a new level of scrutiny.

Marcie Cornfield is an attorney at Gonzalez Saggio & Harlan LLP, practicing employment law in the Milwaukee office. She can be reached by telephone at 414-277-8500 or via email.