Focus On: Proposed ADA Updates (Part I)

October 12, 2009
Employers Council

To comply with the ADAAA (ADA Amendments Act of 2008), the EEOC has published proposed updates (see http://edocket.access.gpo.gov/2009/pdf/E9-22840.pdf) to its ADA regs and accompanying interpretive guidance.

Our December 29, 2008 newsletter summarized major ADAAA provisions. Proposed EEOC updates include:
• An impairmentis a disability if it substantially limits the ability of a person to perform a major life activity (including major bodily functions) as compared to most people. The impairment need not "prevent, or significantly or severely restrict" a major life activity.
• "Mitigating measures" (other than ordinary eyeglasses or contact lenses) may not be considered in deciding if an impairment is a disability, but may be considered, for example, in deciding whether the measures eliminate the need for reasonable accommodation.
• A person with an impairment that limits ability to perform, or to meet the qualifications for, a "type of work," is deemed substantially limited in "working." Concepts of "class" or "broad range" of jobs, and specific factors in determining "substantial," are eliminated. "Type of work" is the person's existing job or the job being applied for, or may be determined by the nature of the work an individual is substantially limited in performing as compared to most people having comparable training, skills, and abilities.
• Examples of "types of work" include: commercial truck driving, assembly line jobs, food service jobs, clerical jobs, or law enforcement jobs.
• A person is "regarded as" disabled if disaffected due to an actual or perceived impairment, or symptoms of such an impairment, unless the impairment is merely minor and "transitory" (lasting or expected to last for 6 months or less – but only for the purposes of "regarded as" disabled). Belief that the impairment substantially limits a major life activity is not necessary.
• Persons "regarded as" disabled are not entitled to reasonable accommodation.
• A person has a "record of" a disability if s/he "has a history of, or has been misclassified as having, an impairment that substantially limits one or more major life activities" when compared with most people.