The Equal Employment Opportunity Commission yesterday published proposed new rules designed to implement the ADA Amendments Act of 2008 (which became effective on January 1, 2009).  The amendments broadened the definition of disability and will make it easier for an individual seeking protection under the ADA to establish that he or she has a disability; in fact,  the EEOC now believes that “determination of whether an individual has a disability should not demand extensive analysis.”    

The EEOC’s proposed rules, which will affect 29 CFR 1630 et seq., include the following changes:

—    Provides that the definition of ‘‘disability’’ shall be interpreted broadly;

—    Revises the regulations defining the term ‘‘substantially limits’’ by providing that a limitation need not ‘‘significantly’’ or ‘‘severely’’ restrict a major life activity in order to meet the standard, and by deleting reference to the terms ‘‘condition, manner, or duration’’ under which a major life activity is performed;

—    Expands the definition of ‘‘major life activities’’ through two nonexhaustive lists:  the first list includes activities such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with  others, and working; the second list includes major bodily functions, such as functions of the immune system, special sense organs, and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions;

—    Provides that mitigating measures other than ‘‘ordinary eyeglasses or contact lenses’’ shall not be considered in assessing whether an individual has a ‘‘disability’’;

—    Provides that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;

—    Changes the definition of ‘‘regarded as’’ so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead 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;

—    The proposed rule provides that actions based on an impairment include actions based on symptoms of an impairment;

—    Clarifies that individuals covered only under the ‘‘regarded as’’ prong are not entitled to reasonable accommodation; and,

—    Provides that qualification standards, employment tests, or other selection criteria based on an individual’s uncorrected vision shall not be used unless shown to be job-related for the position in question and consistent with business necessity.

Public comments on the proposed new rules may be made before November 23, 2009.