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Friday, June 26, 2009

EEOC Commission Approves ADAAA Regs


EEOC Commission Approves ADAAA Regulations

Reprint: Opelika-Auburn News, June 28, 2009

On June 17, 2009 the US Equal Employment Opportunity Commission (EEOC) adopted conforming regulations to changes made by the ADA Amendments Act (ADAAA) of 2008, which Act makes it easier for an individual seeking protection under the Americans with Disabilities Act (ADA) to establish that he or she has a disability. The three-member Commission (there are two vacancies) voted 2 to 1 to adopt these proposed regulations. The lone Commission dissenter is my former law partner Connie Barker. See Connie’s statement at http://www.eeoc.gov/abouteeoc/meetings/6-17-09/barker.html
As well stated by Connie, “These proposed changes depart in a fundamental way from the basic concept of the ADA – that disability is determined on the basis of an individualized assessment and not categorically.”

The ADA was signed into law in July 1990 and the EEOC is responsible for enforcing Title I of the ADA, which prohibits employment discrimination against individuals with disabilities. The Act requires employers to make reasonable accommodations to employees and job applicants with disabilities, including mental or physical impairments that substantially limit a major life activity, persons with a record of a disability, or who are regarded as disabled.

The ADAAA, which went into effect January 1, 2009, makes significant changes to the definition of the term “disability” by rejecting the holdings of several Supreme Court decisions and making it easier for an individual to establish that he or she has a disability. The ADAAA states that this new definition of disability is to be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA. The next step is review of the proposed Regulation by the Office of Management and Budget.

Christopher J. Kuczynski, Assistant Legal Counsel for the EEOC, has provided a detailed description of the proposed regulation and listed numerous examples to illustrate the application of this revised, and much expanded, definition of disability:
  • The first list includes many of the activities already recognized by the EEOC: walking, seeing, hearing, speaking, standing, lifting, thinking, concentrating, sleeping, etc;
  • It also includes three additional activities not previously recognized of bending, reading and communicating;
  • The second list of major life activities are “major bodily functions…include normal cell growth, functions of the immune system, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions,”
  • “Reaching, sitting, and interacting with others have also been included because the EEOC has previously recognized them as major life activities;”
  • Newly “added functions of the hemic, lymphatic, and musculoskeletal systems;” and
  • “Kidney disease, bladder function, cancer as it affects normal cell growth, diabetes as it affects functions the endocrine system (e.g., production of insulin), epilepsy as it affects neurological functions or functions of the brain; and HIV and AIDS as it affect functions of the immune system and reproductive functions.”

Practical Counsel: Brace yourself. The full text of Kuczynski’s written statements are posted on the EEOC’s website at: http://www.eeoc.gov/abouteeoc/meetings/6-17-09/kuczynski.html
If you are an employer you will need to breathe deeply into a paper bag first so you will not faint from the insanity of the EEOC’s interpretation of what Congress passed and Bush signed in the fall 2008. Handbook and Job Description upgrades are strongly encouraged.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com