Thursday, October 22, 2009

The EEOC recently released its proposed regulations for the ADA Amendments Act of 2008. The regulations were designed to better define the provisions of the Amendments and better refine Congress’s intent in amending the ADA. In fact, the drafters of the proposed regulations made sure that we were aware that they were charged with enacting Congress’s intent that the term “disability” be broadly construed (if they mentioned it once, they mentioned it 20 times!!).

True to their task, the EEOC has broadly defined what qualifies as a disability. In fact, the proposed regulations, at this point, do not leave much question as to whether a disability exists. The list of major life activities is so extensive that almost any ailment could substantially limit one of those activities (for instance, concentrating is now considered a major life activity – who doesn’t suffer from the occasional lapse in that!). Also of note is the change which no longer allows ameliorative mitigating factors such as medication or other devices -- except eyeglasses and contact lenses -- in determining whether an activity of daily life is affected. It also important to recognize that the proposed regulations only require an ailment to substantially limit one major life activity and it does not matter whether it limits others.

Ultimately, we wish the committee spent a little bit more time letting us know what would be considered an “undue hardship” for the employer. We know that whether an ailment is a disability will be broadly construed, but there’s just not much guidance on what to do with that. For instance, the proposed regulations specifically list epilepsy as a disability, but no guidance is given on how to accommodate the disability or what would be considered an undue hardship for an employer trying to accommodate an epileptic.

Regardless, there'll be much more to come on these regulations. Stay tuned for more!

No comments: