The Equal Employment Opportunity Commission (EEOC) issued a Federal Register Notice proposing to revise its Americans with Disability Act (ADA) regulations and accompanying interpretive guidance in order to implement the ADA Amendments Act of 2008, Pub. L. No. 110?325. Comments on the proposed regulations, 74 Fed. Reg. 48431-48450, are due no later than November 23, 2009. The EEOC described the nature of the revised regulations as follows:

Pursuant to the 2008 amendments, the definition of disability under the ADA, 42 U.S.C. 12101, et seq., shall be construed in favor of broad coverage to the maximum extent permitted by the terms of the ADA as amended, and the determination of whether an individual has a disability should not demand extensive analysis. The Amendments Act makes important changes to the definition of the term “disability” by rejecting the holdings in several Supreme Court decisions and portions of EEOC’s ADA regulations. The effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA. . . . .

The Amendments Act retains the ADA’s basic definition of “disability” as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, it changes the way that these statutory terms should be interpreted in several ways, therefore necessitating revision of the existing regulations and interpretive guidance contained in the accompanying “Appendix to Part 1630—Interpretive Guidance on Title I of the Americans with Disabilities Act,” which are published at 29 CFR part 1630.

Consistent with the provisions of the Amendments Act and Congress’s expressed expectation therein, the proposed rule:

—Provides that the definition of “disability” shall be interpreted broadly;

—Revises that portion of the regulations defining the term “substantially limits” as directed in the Amendments Act by providing that a limitation need not “significantly” or “severely” restrict a major life activity in order to meet the standard, and by deleting reference to the terms “condition, manner, or duration” under which a major life activity is performed, in order to effectuate Congress’s clear instruction that “substantially limits” is not to be misconstrued to require the “level of limitation, and the intensity of focus” applied by the Supreme Court in Toyota Motor Mfg., Ky v. Williams, 534 U.S. 134 [sic: correct citation is 534 U.S. 184] (2002) (2008 Senate Managers’ Statement at 6);

—Expands the definition of “major life activities” through two nonexhaustive lists:

—The first list includes activities such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working, some of which the EEOC previously identified in regulations and sub-regulatory guidance, and some of which Congress additionally included in the Amendments Act;

—The second list includes major bodily functions, such as functions of the immune system, special sense organs, and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions, many of which were included by Congress in the Amendments Act, and some of which have been added by the Commission as further illustrative examples;

—Provides that mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a “disability”;

—Provides that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;

—Provides that 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 who is subjected to an action prohibited by the ADA (e.g., failure to hire, denial of promotion, or termination) because of an actual or perceived impairment will meet the “regarded as” definition of disability, unless the impairment is both transitory and minor;

—The proposed rule provides that actions based on an impairment include actions based on symptoms of an impairment, and the Commission invites public comment on this point;

—Provides that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation; and,

—Provides that qualification standards,employment tests, or other selection criteria based on an individual’s uncorrected vision shall not be used unless shown to be job-related for the position in question and consistent with business necessity.