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06/22/09 - Proposed EEOC Regulations Could Expand Disability Coverage
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The Equal Employment Opportunity Commission’s (EEOC) proposed regulations for the Americans with Disabilities Act Amendments Act (ADAAA) contain several definitions that could expand the terms under which a person may be considered disabled. Although the EEOC proposal must still go through review by the Office of Management and Budget and then public commentary before being finalized, employers should be aware of the direction that the EEOC appears headed. That direction is consistent with Congress’ making it clear that the scope of disability should be expanded. If the changes are finalized similar to as currently proposed, employers will need to adjust their approach with both applicants and employees with potential disabilities.
Among the changes included in the EEOC proposal regulations are:
- Deletion of the phrase “condition, manner, or duration” from the “substantially limited” terms. Under the current EEOC regulations, the definition of “substantially limited” is “significantly restricted as to the condition, manner, or duration under which an individual can perform a major life activity” as compared to the “condition, manner, or duration” that an average person in the general population can do the same activity. Critics believe that deleting “condition, manner, or duration” overly broadens the scope.
- Expansion of what conditions are presumed to be “substantially limiting.” The list of conditions includes cancer, diabetes, HIV/AIDS, major depression, post-traumatic stress disorder, and schizophrenia. Critics of this expansion believe that identifying these conditions as “automatic” disabilities undermine the individual assessment process currently provided for in the ADA.
- Modification of the major life activity of “working.” Congress did not specifically direct the EEOC to address this term; however, the EEOC proposal modifies the term to mean “a type of work” instead of the current “range or class of jobs.” The EEOC examples of a “type of work” include clerical work, assembly line work, or law enforcement. The broader term lowers the proof required from an individual to establish he or she is “substantially limited” in regards to working.
- Increasing specific examples of “major life activities” and “major bodily functions” that go beyond the ADAAA. Included in these examples are bending, reading, and communicating to the current non-exhaustive list of major life activities. Under the EEOC proposed regulations, major bodily functions would include hemic, lymphatic, and musculoskeletal systems.
While there will be opportunity for commentary before the regulations become final, it is important that organizations recognize the EEOC broadening of ADA coverage increases the need to practice good management of an employee who asserts potential coverage under the “disability” definition. For assistance in reviewing your process or policy, or in training management how to more effectively address the expanded scope, contact us at 503-885-9815.
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