ABC Nov. 23 voiced concerns to the Equal Employment Opportunity Commission (EEOC) regarding a Sept. 23
proposed rule interpreting revisions to the Americans with Disabilities Act (ADA) required under the Amendments Act of 2008 (ADAAA).
Congress passed the
ADAAA on September 28, 2008 in response to several Supreme Court decisions that too narrowly interpreted the ADA’s definition of disability. The ADAAA redefines a disability as:
- A physical or mental impairment that substantially limits a major life activity;
- A record of physical or mental impairment that substantially limited a major life activity; or
- Being regarded as having such an impairment – which includes any action prohibited by the ADA, based on an actually or perceived impairment, regardless of whether the impairment is substantially limiting.
Employers were required to begin complying with the changes the amendments made to the ADA starting Jan. 1, 2009, although the proposed rule clarifying the changes is only now being issued. ABC in conjunction with the Independent Electrical Contractors filed comments with the EEOC requesting changes to the proposed rule before it is finalized.
In the comments, ABC noted that while the association and its members “fully support the goal of providing equal employment opportunities for individuals with disabilities,” they have several concerns with the proposed rule.
The first concern was that under the proposed rule, an impairment may qualify as a disability even if it lasts less than six months, although the ADAAA’s legislative history shows that Congress assumed the “substantially limits” requirements precluded conditions of six months or less from being considered disabilities.
While the EEOC states that “temporary, non-chronic conditions of short duration with little or no residual effects usually will not be considered an impairment or disability,” the proposed rule does not offer a specific length of time. ABC noted in its comments that there are many impairments that could last less than six months but longer than a “short duration” and asked that the final rule take out that section and replace it with language stating that the “substantially limiting” label cannot include impairments that last less than six months.
ABC also advised the EEOC to delete a section in the proposed rule that states an employer is considered to regard a person as disabled if that employer takes an employment action based solely on a symptom of an actual or perceived impairment.
“It takes little imagination to envision situations where an employment action could be taken based on some action or characteristic that might be a symptom of an impairment, but also might be encountered frequently in the absence of any impairment,” the comments stated, listing tardiness, unscheduled absences and inappropriate workplace behavior as examples.
“While the ADA prohibits actions based on regarding an employee as disabled, it does not require employers to ignore substandard workplace performance.”
In addition to the two major concerns with the proposed rule, ABC urged the EEOC to remove from the final rule any references to “per se” disabilities and the proposed changes to the definition of the major life activity of working. ABC also asked the commission to conduct a full and complete economic analysis and pointed out that the current analysis grossly underestimates the costs.
Once the EEOC has reviewed all comments, it will publish a final rule. ABC is continuing to monitor the progress of the proposed rule.
The EEOC has also published a questions-and-answers document and other materials, which are available here.