Slightly more than two years after the law took effect, the Equal Employment Opportunity Commission has issued final regulations implementing the ADA Amendments Act, which revised the Americans with Disabilities Act to make it easier to prove a covered disability.
EEOC in September 2009 had issued a proposed rule to conform its existing ADA regulations with the ADA Amendments Act (27 HRR 988, 9/21/09), which took effect Jan. 1, 2009. After receiving and reviewing comments on its proposed regulations and submitting a revised proposal to the White House Office of Management and Budget, EEOC approved a final rule, published in the March 25 Federal Register (76 Fed. Reg. 16,978).
EEOC voted 4-1 to approve the final rule in a private vote completed March 10, with EEOC Chair Jacqueline Berrien and Commissioners Constance Barker, Victoria Lipnic, and Chai Feldblum voting in favor. Commissioner Stuart Ishimaru, who as acting EEOC chairman had voted for the proposed regulations, opposed the final rule.
Although Ishimaru thought EEOC's final rule for the most part effectuates the purposes and goals of the ADA Amendments Act, he voted against approval because he believes there are aspects for which EEOC could have provided clearer guidance, a spokeswoman for Ishimaru told BNA March 24.
EEOC's final rule also revises the commission's interpretive guidance, or appendix, regarding the ADA, which will include illustrative examples of the changes made by the ADA Amendments Act.
EEOC received more than 600 public comments on its proposed regulations from affected individuals, civil rights groups, employer representatives, and other government agencies. EEOC said that in response to those comments, the final rule “has refined language” used in the proposed rule and “has also streamlined the organization of the regulation to make it simpler to understand.”
EEOC's proposed rule was criticized by business groups for listing certain impairments that would “consistently” meet the definition of disability. EEOC said that in response, the final regulations clarify that an individualized assessment is still required, but that when applying the principles of the ADA Amendments Act, the listed impairments should easily be determined to be disabilities.
In rolling out the final rule, EEOC also released a regulations fact sheet, questions and answers regarding the final rule, and a separate small business question-and-answer supplement.
The final regulations take effect 60 days after publication in the Federal Register.
In a March 24 statement, EEOC emphasized the final rule was supported by both Democrats and Republicans on the commission.
“Just as the [ADA Amendments Act] was the result of a considerable bipartisan effort by Congress, the final rule represents a concerted effort of EEOC commissioners representing both parties to arrive at regulations that hold true to that bipartisan congressional intent,” said EEOC Commissioner Barker, a Republican who voted for the final rule after opposing the proposed regulations.
EEOC Commissioner Feldblum (D), who joined the commission in April 2010 after playing key roles in Capitol Hill negotiations over both the original ADA and the 2008 amendments, said she is “confident that these regulations will work well for both people with disabilities and employers.”
The commission's final rule “streamlines” the proposed regulations by either deleting a number of examples that were contained in the proposed rule or placing them in the appendix rather than the rule's test, said Christopher Kuczynski, assistant legal counsel and director of EEOC's ADA Policy Division.
For example, the final rule's section regarding “substantially limits” is substantively similar to the proposed regulations but perhaps “easier to find and a little more user-friendly,” Kuczynski said.
Regarding the rule's list of impairments that consistently will be found to be disabilities under the ADA Amendments Act, Kuczynski said the same impairments are listed in the final rule as in the proposed regulations, but EEOC added language to indicate individualized assessments still are required.
EEOC “always meant” that its conclusion that certain impairments almost always are covered disabilities is “a function of the individualized assessment,” and the final rule is “clear that this still requires an individualized assessment,” Kuczynski told BNA March 24.
But EEOC's final rule deleted a paragraph listing conditions that normally will not be considered disabilities, as well as a section in the proposed regulations about impairments that may or may not be deemed disabilities, Kuczynski said. Those simply seemed to cause confusion among commenters, he said.
EEOC's final rule emphasizes that although the standard for determining disability is lower under the ADA Amendments Act, “not all impairments are disabilities,” Kuczynski said.
Other significant deletions from the proposed rule include a section in which EEOC had adopted a “type of work” standard to define substantial limitation in the major life activity of working. The proposed language was not well-received by employers and the final rule contains no section on working as a major life activity, Kuczynski said. Rather, EEOC refers in the appendix to the “range or broad class of jobs” standard that courts have traditionally used to determine whether a condition substantially limits the ability to work, he said.
EEOC also dropped language from the proposed regulations that referred to “symptoms” of an impairment as the possible basis for a “regarded as” disabled claim, Kuczynski said. EEOC found that “raised more complicated issues” than could be addressed in the current regulations, he said.
The final rule removes a reference to “surgical intervention” as an example of a mitigating measure that employers generally may not consider in deciding whether an individual's impairment renders him substantially limited. Kuczynski explained that commenters generally found the reference to surgery confusing, so EEOC dropped it.
Meanwhile, EEOC restored to the final rule's section on substantial limitations language that allows employers and courts to consider “the manner, condition, or duration” in which an individual performs an activity, in determining whether the person is substantially limited. Representatives from both the business and disabilities communities apparently found that a useful formulation so EEOC's final rule allows those factors to be considered, Kuczynski said.
The final rule includes “a tiny bit” about reasonable accommodation, specifying that accommodations may be required for persons with a “record of disability” but are not available to those claiming they were “regarded as” disabled, Peggy Mastroianni, EEOC associate legal counsel, told BNA March 24.
Employer representatives said the final rule hews more closely to congressional intent and better reflects the bipartisan agreements in Congress that allowed the ADA Amendments Act to become law.
“Overall, it's a much better product,” Michael Peterson, director of labor and employment policy for the HR Policy Association in Washington, D.C., told BNA March 24.
Peterson said parts of EEOC's proposed rule were “just flat out contrary” to the agreements struck in Congress and that the final rule is “easier to understand” and should be “easier to apply” than the proposed regulations would have been.
As for specific provisions, Peterson said EEOC's changes to the “per se list of disabilities” softens his association's objections by making a “slight improvement” to the wording. But Peterson said “we're still concerned” about this aspect of the final regulations.
“It is contrary to the act's requirement that an individualized assessment be conducted,” Peterson said. The final rule's language “may still embolden some judge to bypass” the individualized assessment analysis, and it leaves “employers a little hazy” on how to comply, Peterson told BNA.
Lawrence Lorber, a management attorney with Proskauer Rose in Washington, said the final regulations are “much truer” to the statute than the proposed regulations. But like Peterson, Lorber said the list of “assumed disabilities” in EEOC's final rule remains problematic. During congressional negotiations over the ADA Amendments Act, it was clear “there was no appetite” for developing a “per se” list of covered disabilities, Lorber told BNA March 24.
Lorber said that in its proposed regulations, EEOC was “really trying to expand” on what Congress had done. But EEOC's final rule better serves Congress's desire to have more ADA issues decided outside the courtroom, Lorber said. The final regulations reflect the ethos of “more accommodations, less litigation,” he told BNA.
In a March 24 statement, the Society for Human Resource Management in Alexandria, Va., also applauded EEOC's final rule. “We are pleased with the bipartisan leadership EEOC has shown to address some of the problems of the initial proposed regulations and to create a more balanced and workable rule,” said Henry G. Johnson, the organization's interim president and chief executive officer. “It now better reflects the bipartisan agreement that led to the bill's passage.”
AARP said EEOC's final rule is good news for workers as well as employers. “The new regulations shift the focus of ADA cases where it should be: whether the worker was discriminated against, rather than whether the worker has a 'disability' within the meaning of the law,” said David Sloane, senior vice president of AARP's government relations and advocacy department.
David Fram, director of ADA and EEOC services for the National Employment Law Institute in Denver, said that in addition to being a “more accurate” reflection of the statute, the final regulations are “much more likely to be enforced in court” than EEOC's earlier proposal.
Fram said it was “very wise” for EEOC to modify the language regarding impairments that are likely to be consistently found disabilities, as its earlier proposal probably was not enforceable. As a practical matter, the impairments EEOC listed probably will be considered disabilities in almost all cases, Fram told BNA March 24.
Fram said he is disappointed that EEOC does not provide an affirmative definition of “substantially limits.” He added that it was a “little troubling” that the final rule rejects a minimum duration for an impairment that substantially limits a major life activity, saying it means that a condition that “lasts far less than several months” could be considered a covered disability.
Perhaps the “most troubling” aspect of the final rule is that EEOC considers it “irrelevant” what an individual can do when determining whether an impairment substantially limits a major life activity, Fram said. He said “virtually every federal appeals court” has taken the opposite position, that employers and courts can consider what individuals are able to do in determining disability. He suggested employers can argue that EEOC's position is not supported by the statute.
By Kevin P. McGowan
EEOC's final rule can be accessed at http://op.bna.com/dlrcases.nsf/r?Open=kmgn-8f9jaz. The text of the question and answer sheet is on EEOC's web site at http://www.eeoc.gov/laws/regulations/ada_qa_final_rule.cfm, the fact sheet is at http://www.eeoc.gov/laws/regulations/adaaa_fact_sheet.cfm, and the small business Q and A is at http://www.eeoc.gov/laws/regulations/adaaa_qa_small_business.cfm.