Regulations will broaden definition of disability, lower threshold to establish condition and expand major life activities

With story from Linex Legal

The US EEOC filed a notice in the Federal Registry on September 23, 2009 to widen the definition of disability under the Americans with Disabilities Act ADA.

The changes are open until November 23, 2009 for comment. After comments are received and considered, the EEOC will move to publish the new regulations.

Previously courts had ruled narrowly to restrict the application of the disability definition which is

Under the ADA, an individual with a disability is a person who:

1. has a physical or mental impairment that substantially limits one or more major life activities;
2. has a record of such an impairment; or
3. is regarded as having such an impairment.

According the the legal commentary site Linex Legal,

“They:
1. Interpret broadly the definition of “disability”;

2. Significantly lower the threshold to establish an individual is “substantially limited,” so that an impairment need not “significantly” or “severely” restrict a major life activity in order to meet the standard, and delete the terms “condition, manner, or duration” under which a major life activity is performed, in order to effectuate Congress’s instruction that “substantially limits” is not to be misconstrued to require the level of limitation, and the intensity of analytical focus, applied by Supreme Court cases;

3. Expand the definition of “major life activities” by providing two non-exhaustive lists of included activities and functions:

* 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, many of which were included by Congress in the ADAAA. The EEOC has included examples of conditions deserving of coverage, such as cancer, epilepsy, HIV and AIDS;

4. Eliminate consideration of the ameliorating effect of mitigating measures, other than ordinary eyeglasses or contact lenses, in assessing whether an individual has a “disability”;

5. Include an impairment that is episodic or in remission as a “disability” if it would substantially limit a major life activity when active; and

6. Significantly change 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. Instead, the proposed regulations provide 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, or actions based on symptoms of an impairment, will meet the “regarded as” definition of disability, unless the impairment is both transitory and minor.”