1. ADAA EEOC’s Proposed Rules
Carole F. Dubritsky
The University of Michigan
Assistant Director and ADA Coordinator
Office of Institutional Equity

2. EEOC’s Proposed Regulations
Brief review of history and intent
Key changes
Definitions and interpretations
What did not change
Impact on HR Professionals
Best Practices

3. Intent of the ADAA
Reinstate the intent of Congress to have the ADA construed broadly
Address the U.S. Supreme Court’s decisions which interpreted disability too narrowly
Correct the courts’ and EEOC’s definition of ‘substantially limits’ which established a high standard

4. ADAA Timeline July 2007 : ADA Restoration Act
September 2008 President signs ADAA
January 1, 2009: Effective date
June 2009: EEOC proposed regs to OMB
OMB reviews proposed regs
September 2009: regs published in the Federal Register
Public comment period ends November 23, 2009
Back to EEOC for any revisions
Final regs sent back to OMB

5. Key Changes Expands the definition of “major life activities”
Revises the definition of “substantially limits”
Determines mitigating measures shall not be considered in assessing whether a person has a disability (i.e. substantially limiting)
Addresses impairments that are episodic or in remission
Changes the definition of “regarded as”

6. EEOC Key Changes
Places examples in the regulations rather than the interpretive guidelines
Specificity in the regulations will increase the likelihood courts will defer to EEOC interpretations

7. U.S. Supreme Court Decisions
ADAA rejects the court’s findings in the Sutton trilogy that mitigating measures are considered in determining disability
ADAA rejects the court’s finding in Toyota that demands an impairment ‘severely restrict’ major life activities

8. Definitions that did not change
Definition of qualified
Essential and marginal functions
Interactive process
Reasonable accommodation
Undue hardship
Direct threat

9. Definition of Disability
A physical or mental impairment that substantially limits one or more major life activities
A record of such an impairment
Being regarded as having such an impairment

10. Definition of Disability
ADAA names specific conditions as “covered”
Other conditions are named by EEOC that most likely will be considered as covered
Episodic or conditions in remission most likely will be considered as covered
Evaluation and individual assessment should not be extensive or exhaustive

11. Major Life Activities
The former list of examples of major life activities is retained and expanded. The focus, however, has shifted to what a person cannot do.
Caring for oneself, seeing, hearing, eating, sleeping, walking, standing, bending, etc.
ADAA adds, reading, communication, bending
EEOC adds sitting, reaching, and interacting with others in proposed regulations
Inclusion of major bodily functions

12. Major Bodily Functions
Immune system, normal cell growth
Digestive, bowel, bladder
Neurological, brain
Circulatory, respiratory, endocrine, reproductive
EEOC adds hemic, lymphatic, musculoskeletal, special sense organs, skin, cardiovascular, genitourinary in the proposed regulations

13. Impairments that are Episodic or in Remission
Considered disabilities if they would substantially limit a major life activity if active
Epilepsy
Hypertension
Multiple sclerosis

14. Impairments that are Episodic or in Remission
Asthma
Not seasonal allergies unless when active would substantially limit a major life activity
Diabetes
Major depression, bipolar disorder, schizophrenia

15. “Substantially Limits”
Congress disagreed with post-ADA standards U.S.S.C. – “severely restricts” EEOC – “significantly restricts”

16. “Substantially Limits”
Need not prevent or significantly or severely restrict the individual from performing a major life activity
Not focused on ability, but on what a person cannot perform (change from previous interpretation)
Compare to most people in the general population
Requires “common sense individualized assessment”, not exhaustive or extensive analysis
Little other specificity from EEOC

17. “Substantially Limited” in Working
Usually, but not always, a person will be substantially limited in another major life activity
“type of work” replaces a “class or broad range of jobs”
i.e. commercial truck driving, food service, clerical, law enforcement

18. Impairments that are substantially limiting
ADAA retained blindness, deafness, missing limbs, mobility impairments requiring the use of a wheelchair, etc.
EEOC added:
Autism, cancer, cerebral palsy, diabetes, epilepsy
HIV and AIDS
multiple sclerosis, muscular dystrophy
major depression, bipolar disorder, post-traumatic stress disorder, schizophrenia

19. Impairments that are most often not substantially limiting
Temporary non-chronic impairments of short duration
Little or no residual effects expected or anticipated
Cold, seasonal flu, sprained joint, simple fracture, etc.

20. “Regarded As”
Applies when an action is taken that is prohibited by the ADA (failure to hire, promote; termination, demotion) based on individual’s impairment or perceived impairment, regardless of whether the impairment limits or was perceived to limit a major life activity
Excludes impairments that are transitory (expected to last less than six months) and minor

21. “Regarded As”
The applicant/employee must still be qualified (EEOC will consider performance evaluations)
The employment action may be allowable because of another federal law
Direct threat still applies
Individuals “regarded as” disabled are not entitled to reasonable accommodation

22. “Regarded As” Clarification
Asking an employee who appears to be having difficulty performing a job because of an impairment does not trigger the “regarded as” provision
Asking an employee for medical information as part of the interactive process is permitted where the disability is not obvious and this request does not trigger the “regarded as” provision

23. EEOC Rules of Construction
Focus should be whether discrimination occurred, not whether someone meets the definition of disability
Definition of “substantially limited” should be construed broadly
Individual assessment should not be extensive or exhaustive

24. EEOC Rules of Construction
If an impairment substantially limits a major life activity, you do not need to also demonstrate the activity is “of central importance” to daily life

25. EEOC Rules of Construction
If an impairment substantially limits a major life activity there is no need to identify limitations with other major life activities to be substantially limiting
RULE 4
Comparison of a person’s limitations to that of most people in general should be made using common sense analysis

26. EEOC Rules of Construction
RULE 5 Impairments lasting less than six (6) months may still be substantially limiting in regards to the application of the “transitory and minor” exception in the “regarded as” provision

27. Potential Shortcomings
Fuzzy guidance regarding “substantially limits “
Specific impairments are ‘covered’ but employers are still directed to individually assess “substantially limits”, but not exhaustively or extensively
Non-competitive reassignment not addressed by ADAA, EEOC, or U.S. Supreme Court (Huber v. Wal-Mart was settled January 2008 before oral arguments)

28. Impact on HR Professionals
“Not disabled” will be a very difficult defense
Those who meet the definition of disability are not necessarily entitled to an accommodation
The effect of mitigating measures cannot be considered in evaluating whether a person has a disability
The effect of mitigating measures can be considered in when evaluating the need for a reasonable accommodation

29. Impact on HR Professionals
EEOC Regulations when finalized will be retroactive to January 1, 2009
Review your policies and practices, now
Review and revise your documentation procedures if needed, now
Provide information and overview to managers and supervisors, now

30. Some Best Practices
If absence or leave is an issue, always consider the implications of FMLA first
Engage and focus on the interactive process
Make sure documentation is clear and complete, and follows procedures
Have up to date job descriptions (3-5 rule)

31. Some Best Practices
Clearly separate issues of performance, attendance, and behavior
Keep the process simple, be flexible whenever possible
Consider “trial accommodations”
Do not rely on supervisors to determine disability

32. Questions and Comments