The Equal Employment Opportunity Commission (EEOC) published in the Federal Register its proposed revisions to the Americans with Disabilities Act (ADA) regulations and accompanying interpretive guidance in order to implement the ADA Amendments Act of 2008. Outlined below are the key changes to the EEOC regulations and interpretive guidance as proposed in the Federal Register.

• The definition of “disability” is be interpreted broadly, to the maximum extent permitted by the terms of the ADA.
• Revised definition of “substantially limits” by providing that a limitation need not “significantly” or “severely” restrict a major life activity in order to meet the standard.
• Expanded definition of “major life activities” by providing two non-exhaustive lists of activities and major bodily functions. The first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that the EEOC has not previously recognized (e.g., reading, bending, and communicating). The second list includes functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
• Mitigating measures other than “ordinary eyeglasses or contact lenses” are not to be considered in assessing whether an individual has a disability. Additionally, an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
• The definition of “regarded as” is changed 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 is “regarded as” disabled if he or she is subject to an action prohibited by the ADA (e.g., failure to hire) based on an impairment that is not transitory or minor. Individuals covered only under the “regarded as” prong are not entitled to reasonable accommodations.
• Impairments that will “consistently meet the definition of disability” include, but are not limited to, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.

The EEOC is accepting written comments to the proposed regulations until November 23, 2009. If you have any questions about these proposed regulations, please contact your SGR employment counsel.