On September 23, 2009, the Equal Employment Opportunity Commission (EEOC) issued lengthy, proposed regulations concerning the recent amendments to the Americans with Disabilities Act (ADAAA), which substantially expanded the definition of disability and the corresponding reach of the Americans with Disabilities Act. The EEOC estimates that an additional one million workers may now meet the revised definition of disability. Interested parties have on or until November 23, 2009, to submit comments to the proposed regulations. This advisory will highlight just a few of the changes in the proposed regulations.

The proposed regulations expand the term "major life activities" to include sitting, reaching and interacting with others, even though these are not included in the ADAAA. In a stated effort to make it easier to find that individuals with certain types of impairments have a disability, the proposed regulations also adds hemic, lymphatic, musculoskeletal, special sense organs and skin, genitourinary and cardiovascular to the list of examples of major life activities.  

The proposed regulations explain that whether an impairment substantially limits a major life activity is a common sense assessment based on comparing an individual's ability to perform a specific major life activity (which could now be a major bodily function) with that of most people in the general population. An impairment no longer needs to prevent, or significantly or severely restrict the individual's ability to perform a major life activity, to be considered "substantially limiting."  

The proposed regulations change what an individual needs to establish to show that he or she is substantially limited in the major life activity of working. The proposed regulations provide that an impairment substantially limits the major life activity of working when it substantially limits an individual's ability to perform, or to meet the qualifications for, a "type of work." The "type of work" concept is new and replaces the concept of a "class" or "broad range" of jobs. A type of work may include jobs such as commercial truck driving, assembly line jobs, food service jobs, clerical jobs or law enforcement jobs. A type of work also may be determined by reference to job-related requirements, such as:  jobs requiring repetitive bending, reaching or manual tasks; jobs requiring frequent or heavy lifting; and jobs requiring prolonged sitting or standing.

The proposed regulations change the definition of "regarded as." Under the proposed regulations, an employer "regards" an individual as having a disability if the employer takes an action prohibited by the ADA based on an individual's impairment or on an impairment the employer believes the individual has, unless the impairment is transitory and minor. The proposed regulations remove the need to show that the employer believed the impairment (or perceived impairment) substantially limited performance of a major life activity.

Although the proposed regulations are not yet binding, and may change materially before they are issued in final form, the regulations are important to employers now because they illustrate the EEOC's current views regarding the ADAAA, and indicate how the EEOC is likely to handle cases that are considered while the regulations are pending.