[Federal Register Volume 74, Number 183 (Wednesday, September 23, 2009)]
[Proposed Rules]
[Pages 48431-48450]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-22840]


=======================================================================
-----------------------------------------------------------------------

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Part 1630

RIN 3046-AA85


Regulations To Implement the Equal Employment Provisions of the 
Americans With Disabilities Act, as Amended

AGENCY: Equal Employment Opportunity Commission (EEOC).

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Equal Employment Opportunity Commission (the Commission or 
EEOC) proposes to revise its Americans with Disabilities Act (ADA) 
regulations and accompanying interpretive guidance in order to 
implement the ADA Amendments Act of 2008. The Commission is responsible 
for enforcement of title I of the ADA, as amended, which prohibits 
employment discrimination on the basis of disability. Pursuant to the 
ADA Amendments Act of 2008, EEOC is expressly granted the authority to 
amend these regulations, and is expected to do so, in order to conform 
certain provisions contained in the regulations to the Amendments Act.

DATES: Written comments on this rulemaking must be submitted on or 
before November 23, 2009.

ADDRESSES: Written comments should be submitted to Stephen Llewellyn, 
Executive Officer, Executive Secretariat, Equal Employment Opportunity 
Commission, 131 M Street, NE., Suite 4NW08R, Room 6NE03F, Washington, 
DC 20507. As a convenience to commenters, the Executive Secretariat 
will accept comments transmitted by facsimile (``FAX'') machine. The 
telephone number of the FAX receiver is (202) 663-4114. (This is not a 
toll-free number.) Only comments of six or fewer pages will be accepted 
via FAX transmittal to ensure access to the equipment. Receipt of FAX 
transmittals will not be acknowledged, except that the sender may 
request confirmation of receipt by calling the Executive Secretariat 
staff at (202) 663-4070 (voice) or (202) 663-4074 (TTY). (These are not 
toll-free telephone numbers.) You may also submit comments and 
attachments electronically at http://www.regulations.gov, which is the 
Federal eRulemaking Portal. Follow the instructions online for 
submitting comments. Copies of comments submitted by the public will be 
available for review at the Commission's library, 131 M Street, NE., 
Suite 4NW08R, Washington, DC 20507, between the hours of 9:30 a.m. and 
5 p.m. or can be reviewed at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Christopher Kuczynski, Assistant Legal 
Counsel, or Jeanne Goldberg, Senior Attorney Advisor, Office of Legal 
Counsel, U.S. Equal Employment Opportunity Commission at (202) 663-4638 
(voice) or (202) 663-7026 (TTY). These are not toll-free-telephone 
numbers. This document is also available in the following formats: 
large print, Braille, audio tape, and electronic file on computer disk. 
Requests for this document in an alternative format should be made to 
the Office of Communications and Legislative Affairs at (202) 663-4191 
(voice) or (202) 663-

[[Page 48432]]

4494 (TTY) or to the Publications Information Center at 1-800-669-3362.

SUPPLEMENTARY INFORMATION: The ADA Amendments Act of 2008 (``the 
Amendments Act'') was signed into law by President George W. Bush on 
September 25, 2008, with a statutory effective date of January 1, 2009. 
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. 
Statement of the Managers to Accompany S. 3406, The Americans with 
Disabilities Act Amendments Act of 2008 (hereinafter 2008 Senate 
Managers' Statement); Committee on Education and Labor Report together 
with Minority Views (to accompany H.R. 3195), H.R. Rep. No. 110-730 
part 1, 110th Cong., 2d Sess. (June 23, 2008) (hereinafter 2008 House 
Comm. on Educ. and Labor Report); Committee on the Judiciary Report 
together with Additional Views (to accompany H.R. 3195), H.R. Rep. No. 
110-730 part 2, 110th Cong., 2d Sess. (June 23, 2008) (hereinafter 2008 
House Judiciary Committee Report).
    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 (2002) (2008 Senate Managers' Statement at 6);
--Expands the definition of ``major life activities'' through two non-
exhaustive 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.

    To effectuate these changes, the proposed rule revises the 
following sections of 29 CFR part 1630 and the accompanying provisions 
of the accompanying Appendix:

--Sec.  1630.1 (adds subsections (3) and (4));
--Sec.  1630.2(g)(3) (adds cross-reference to 1630.2(l));
--Sec.  1630.2 (h) (replaces the term ``mental retardation'' with the 
term ``intellectual disability'');
--Sec.  1630.2(i) (revises definition of ``major life activities'' and 
provides examples)
--Sec.  1630.2(j) (revises definition of ``substantially limits'' and 
provides examples)
--Sec.  1630.2(k) (provides examples of ``record of'' a disability)
--Sec.  1630.2(l) (revises definition of ``regarded as'' having a 
disability and provides examples)
--Sec.  1630.2(m) (revises terminology)
--Sec.  1630.2(o) (adds subsection (4) stating that reasonable 
accommodations are not available to individuals who are only ``regarded 
as'' individuals with disabilities)
--Sec.  1630.4 (renumbers section and adds subsection (b) regarding 
``claims of no disability'')
--Sec.  1630.9 (revises terminology in subsection (c) and adds 
subsection (e) stating that an individual covered only under the 
``regarded as'' definition of disability is not entitled to reasonable 
accommodation)
--Sec.  1630.10 (revises to add provision on qualification standards 
and tests related to uncorrected vision)
--Sec.  1630.16(a) (revises terminology).

    These regulatory revisions are explained in the revised Part 1630 
Appendix containing the interpretive guidance which would be issued and 
published in the Code of Federal Regulations with the final rule. The 
Commission originally issued the

[[Page 48433]]

interpretive guidance concurrent with the issuance of the original Part 
1630 ADA regulations in order to ensure that individuals with 
disabilities understand their rights under these regulations and to 
facilitate and encourage compliance by covered entities. The Appendix 
addresses the major provisions of the regulations and explains the 
major concepts. The Appendix as revised would continue to represent the 
Commission's interpretation of the issues discussed, and the Commission 
will be guided by it when resolving charges of employment 
discrimination under the ADA.

Regulatory Procedures

Executive Order 12866

    The rule has been drafted and reviewed in accordance with Executive 
Order 12866, 58 FR 51735 (Sept. 30, 1993), section 1(b), Principles of 
Regulation. It is considered to be a ``significant regulatory action'' 
pursuant to section 3(f)(4) of Executive Order 12866 in that it arises 
out of the Commission's legal mandate to enforce the ADA, and therefore 
was circulated to the Office of Management and Budget for review. These 
revisions are necessary to bring the Commission's regulations into 
compliance with the ADA Amendments Act of 2008, which became effective 
January 1, 2009, and explicitly invalidated certain provisions of the 
regulations. The proposed revisions to the title I regulations and 
Appendix are intended to add to the predictability and consistency 
between judicial interpretations and executive enforcement of the ADA 
as now amended by Congress.

Preliminary Regulatory Impact Analysis

    The following preliminary review of existing research highlights 
the costs and benefits of providing reasonable accommodation under the 
ADA and suggests that the effect on the economy of the changes to 
EEOC's regulation as a result of the ADA Amendments Act will very 
likely be below the $100 million threshold for ``economically 
significant'' regulations. Focusing on the costs of reasonable 
accommodations required by the regulations implementing the ADA 
Amendments, this preliminary review considers estimates of the cost of 
accommodation, the prevalence of accommodation already in the 
workplace, the number of additional accommodation requests that the ADA 
Amendments Act would need to generate to reach the $100 million 
threshold for a economically significant regulatory impact, and the 
reported benefits to employers of providing reasonable accommodations. 
Since the existing research measuring the relevant costs and benefits 
is limited, however, the Commission seeks public comment on this issue 
in order to determine whether further regulatory impact analysis will 
be required.

Preliminary Discussion of Assumptions

    Although this review is based on data regarding how many people 
will benefit from the changes in the ADA and what the anticipated costs 
will be, it is important to take note of the following unique factors 
bearing on any inquiry into the increased costs imposed by the ADA 
Amendments Act and EEOC's proposed rule:

--The fact that prior to the Amendments Act many plaintiffs lost 
reasonable accommodation cases in litigation based on coverage does not 
mean employers denied the underlying accommodation requests because 
they concluded that individuals did not meet the definition of 
``disability.'' Many pre-Amendments Act court decisions, including 
those cited by Congress in the legislative history of the Amendments 
Act, held that someone was not an individual with a disability in cases 
where the employer's denial of accommodation had nothing to do with 
coverage. Rather, coverage was raised as a legal defense after-the-fact 
against the asserted violation of the ADA. This suggests that costs 
associated with the Amendments and implementing regulations are not 
newly imposed and in many instances have already been expended under 
the ADA.
--It is incorrect to assume that cancer, epilepsy, diabetes, or other 
impairments addressed in section 1630.2(j)(5) of the NPRM were not 
covered, in absolute terms, under the prior definition, but now are. 
Many people with the types of impairments identified in section (j)(5) 
that will consistently meet the new definition of disability were 
already covered under EEOC's prior interpretation of the law and by 
those employers who voluntarily complied with it.
--Many of the individuals actually brought within the new definition of 
``disability'' are likely to have less severe limitations needing less 
extensive accommodations. Moreover, those brought within the new 
``regarded as'' definition of ``disability'' are not entitled to 
accommodation at all.
--Of those newly covered under the amended definition who do both 
request and need accommodation, employers will sometimes provide 
whatever is requested based on existing employer policies and 
procedures (e.g., use of accrued annual or sick leave or employer 
unpaid leave policy, employer short- or long-term disability benefits, 
employer flexible schedule options guaranteed by a CBA, voluntary 
transfer programs, ``early return to work'' programs, etc.), or under 
another statute (e.g., FMLA, workers' compensation, etc.).
--Moreover, of those individuals with disabilities who do request 
accommodation, not all will be entitled to it under the ADA because, 
for example, they do not need the accommodation requested, there is no 
reasonable accommodation that can be provided absent undue hardship, or 
they would not be ``qualified'' or would pose a ``direct threat to 
safety, even with an accommodation.''
--EEOC fully expects to issue a new or revised small business handbook 
as part of revisions made to all of our ADA publications, which include 
dozens of enforcement guidances and technical assistance documents, 
some of which are specifically geared toward small business (e.g., 
``The ADA: A Primer for Small Business,'' http://www.eeoc.gov/ada/adahandbook.html).
--An emphasis on the anticipated ``difference'' in compliance costs 
between smaller and larger entities may overlook some offsets to costs 
incurred by smaller entities. For example, EEOC makes available even 
more free outreach and training materials than it does paid trainings. 
Moreover, smaller entities are less likely to have detailed reasonable 
accommodation procedures containing information relating to the 
definition of disability that must be revised or deleted.
--The under-utilization of tax incentives available to encourage 
employers to provide reasonable accommodation, the lag time in receipt 
of the offsets, and the fact that the offsets are only partial, do not 
necessarily support greater costs, since the incentives typically apply 
to accommodations that would relate to more severe disabilities covered 
prior to the ADA Amendments Act.

Reasonable Accommodation

    We note at the outset that extensive data on the costs of providing 
reasonable accommodations for applicants and employees with 
disabilities does not exist, and that much of the data that has been 
collected was obtained through either limited sample surveys or surveys 
that collected very little information.

[[Page 48434]]

    In a broad sense, even the initial passage of the ADA may not have 
significantly increased the cost of reasonable accommodation. For 
example, prior to the passage of the ADA, the 1986 survey of employers 
by the National Organization on Disability (N.O.D.)/Harris Survey found 
that 51 percent of corporations surveyed had made some accommodations 
(National Organization on Disability, Survey Program on Participation 
and Attitudes (1986)). In their 1995 survey, (post ADA) the figure had 
risen to 81 percent (National Organization on Disability, Survey 
Program on Participation and Attitudes (1995)). But, also according to 
the 1995 N.O.D./Harris Survey, 80 percent of executives of large 
companies reported that the cost of accommodating people with 
disabilities had increased only a little or not at all.
    A recent study (Helen Schartz et al., Workplace Accommodations: 
Evidence-Based Outcomes, 27 Work 345 (2006)) examined the costs and 
benefits of reasonable accommodations. The authors provide an overview 
of the past empirical research regarding the costs of accommodation. 
They point to an examination of costs at a major retailer from 1978 to 
1997, which found that the average direct cost of an accommodation was 
$45 (P. D. Blanck, The Economics of the Employment Provisions of the 
Americans with Disabilities Act: Part I--Workplace Accommodations, 46 
DePaul L. Rev. 877 (1997)). A 1996 study (D. L. Dowler, et al., 
Outcomes of Reasonable Accommodations in the Workplace, 5 Tech & 
Disability 345 (1996)) found that the average cost of accommodations 
was $200. An examination of Job Accommodation Network data from 1992 to 
1999 showed a median cost of $250 (Job Accommodation Network, 
Accommodation Benefit/Cost Data Tabulated Through July 30, 1999 
(1999)).
    In examining these studies, questions arise as to the exact 
measurement of costs and what measures of central tendency are used to 
capture cost information. Therefore three recent cost studies including 
Schartz et al are examined here, and efforts were made to obtain more 
source data and to address the issue of the central tendency measure 
actually used. In order to accomplish this, primary source information 
was sometimes necessary.
    The Schartz et al. study relied on a JAN survey,\1\ and a summary 
of those results are provided in Table 1. A questionnaire was used to 
collect the data. Respondents were required to select costs from a 
range of values that are seen in Table 1. The only exception is that 
with respect to the last category, ``Greater than $5,000,'' the range 
had to be closed up ($10,000 was selected) in order to compute a mean.
---------------------------------------------------------------------------

    \1\ Figures derived from personal communication from James Lee 
Schmeling, Syracuse Law School, 7/13/2009.

                                      Table 1--Schartz, Hendricks & Blanck
----------------------------------------------------------------------------------------------------------------
                          Total sample                                 705
----------------------------------------------------------------------------------------------------------------
Cost                                                                  Midpoint         Number           Total
----------------------------------------------------------------------------------------------------------------
0..............................................................              0            141               0
1-500..........................................................            250.5          359.55       90,067.28
501-1,000......................................................            750.5           77.55       58,201.28
1,001-1,500....................................................            751.5           21.15       15,894.23
1,501-2,000....................................................          1,750.5           21.15       37,023.08
2,001-5,000....................................................          3,500.5           56.4       197,428.2
5,001-10,000...................................................          7,500.5           28.2       211,514.1
                                                                 ...............          705         610,128.2
Mean Cost......................................................  ...............  ..............          865.43
Median Cost....................................................  ...............  ..............          751.5
----------------------------------------------------------------------------------------------------------------
Assumes 10,000 as the highest cost in the range.
----------------------------------------------------------------------------------------------------------------

    Thus the mean cost of reasonable accommodation, derived from data 
from the Job Accommodation Network, is $865.43. Arguably, this is not a 
representative sample, since employers who use JAN to assist them in 
developing accommodation solutions might be confronting unique or 
difficult accommodation issues. If this is true, the mean costs might 
be higher than would be found in a broader sample of employers.
    An additional study (Lisa Nishii & Susanne Bruy[egrave]re, 
Presentation at the 2009 American Psychological Association Convention: 
Protecting Employees with Disabilities from Discrimination: The Role of 
Unit Managers (August 7, 2009)) was based on a sample of approximately 
5,000 respondents from a single large Fortune 500 company. Nishii & 
Bruy[egrave]re found that half of all accommodations requested by 
people with disabilities cost the company no money, and 75% of 
accommodations (with known costs) cost less than $500.

                              Table 2--Bruy[egrave]re and Nishii, 2009 Unpublished
----------------------------------------------------------------------------------------------------------------
                          Total Sample                                 5000
----------------------------------------------------------------------------------------------------------------
Disabled.......................................................            145
----------------------------------------------------------------------------------------------------------------
Cost                                                                  Midpoint         Number         Total
----------------------------------------------------------------------------------------------------------------
0..............................................................              0             76.85          0
1-100..........................................................             50              7.25        362.5
101-500........................................................            300.5           24.65      7,407.325
1,001-5,000....................................................          3,000.5            8.7      26,104.35

[[Page 48435]]

 
5,001-10,000...................................................          7,500.5            2.9      21,751.45
                                                                                                 ---------------
                                                                 ...............          120.35     55,625.63
Mean Cost......................................................  ...............  ..............        462.1988
Median Cost....................................................  ...............  ..............        199.5
----------------------------------------------------------------------------------------------------------------
Assumes 10,000 as the highest cost in the range.
----------------------------------------------------------------------------------------------------------------

    Here the mean cost is estimated at $462.
    Another recent study was produced by JAN itself (Job Accommodation 
Network, Workplace Accommodations: Low Cost, High Impact (JAN 2007 Data 
Analysis) (2007)).\2\ The mean cost of reasonable accommodations 
reported by JAN clients was $1,434.\3\ As mentioned above, the JAN 
sample of their clients may not be representative, as those using JAN 
may be experiencing some difficulties in identifying a reasonable 
accommodation solution.
---------------------------------------------------------------------------

    \2\ JAN's ``Workplace Accommodations: Low Cost, High Impact'' 
research findings were updated as of September 1, 2009. The data 
cited in this preamble are from the 2007 findings. The Commission 
will update its analysis based on the new 2009 data when issuing the 
final rule.
    \3\ Communication between Dr. Ron Edwards and Dr. Beth Loy, Job 
Accommodation Network. (Original 2005, Updated 2007). Accommodation 
benefit/cost data (JAN 2007 Data Analysis). Job Accommodation 
Network: Author.
---------------------------------------------------------------------------

    These three studies illustrate a large variance in the estimates of 
mean cost of reasonable accommodations from a high of $1,434 in the JAN 
study to $865.43 in Schartz et al. (which also uses JAN data), and $462 
in the single case study.
    The Schartz et al. and the Bruy[egrave]re and Nishii studies both 
find, based on employer input, that the costs of accommodation are out-
weighed or significantly ameliorated by benefits. In both studies, 
respondents were asked to classify their costs within a number of given 
ranges. The upper range did not have an upper boundary. When data is 
collected in this manner it is necessary to arbitrarily set an upper 
bound in order to compute a mean. Therefore the computed mean is 
sensitive to the arbitrary value used for the highest figure.
    An additional confounding factor here is that not all reasonable 
accommodations are requested by or provided for individuals with 
disabilities. Nishii & Bruy[egrave]re report that the percentages of 
people with and without disabilities that request accommodation are 
remarkably similar. For example, under federal or state worker 
compensation laws, there are numerous accommodations extended to 
injured workers (whose impairments may not be disabilities within the 
meaning of the ADA) that enable them to return to work safely. 
Similarly, some individuals who are able to take leave needed for 
treatment or other disability-related purposes under the Family and 
Medical Leave Act may not have impairments that would be considered 
disabilities.

Applicants and Employees With Disabilities

    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. Clearly 
this is not likely to be a sweeping change but one that adjusts the 
definition with a level of precision that is not captured in commonly-
used databases. The number of affected workers is thus a difficult 
albeit key element to determine in estimating regulatory impact.
    Deriving an estimate of the number of affected workers depends upon 
several key factors including: the survey data used, the defined set of 
disability measures, the definition of employment, and the age range of 
the population under study. Below, we briefly discuss and present 
results from two nationally-representative surveys that are widely-used 
sources of information regarding the population with disabilities in 
the United States: the Annual Social and Economic Supplement to the 
Current Population Survey (CPS-ASEC) and the American Community Survey 
(ACS).

The Annual Social and Economic Supplement to the Current Population 
Survey

    The CPS-ASEC is the only dataset that, since 1981, has annually 
interviewed Americans with disabilities using a consistently-defined 
disability variable. Therefore, it has an advantage over all other 
national surveys in depicting lengthy time series information regarding 
working-age people with disabilities. The CPS-ASEC contains a single 
indicator of disability to identify individuals with work limitations. 
The measure is phrased as follows: Does anyone in this household have a 
health problem or disability which prevents them from working or which 
limits the kind or amount of work they can do? [If so,] who is that? 
Anyone else?

The American Community Survey

    The ACS is an annual survey that contains six questions regarding 
disability status. While it was first fielded in 2000, a subset of the 
2000-2002 disability indicators are known to be problematic due to 
questionnaire phrasing that affected the interpretation of two of the 
indicators, the go-outside-home and work limitation questions (Sharon 
M. Stern, U.S. Census Bureau, Counting People with Disabilities: How 
Survey Methodology Influences Estimates in the Census 2000 and the 
Census 2000 Supplementary Survey (2003), www.census.gov/acs/www/Downloads/ACS/finalstern.pdf; Sharon Stern & Matthew Brault, U.S. 
Census Bureau, Disability Data from the American Community Survey: A 
Brief Examination of the Effects of a Question Redesign in 2003 (2005), 
www.census.gov/hhes/www/disability/ACS_disability.pdf; Andrew J. 
Houtenville et al., Complex Survey Questions and the Impact of 
Enumeration Procedures: Census/American Community Survey Disability 
Questions (Census Bureau, Working Paper No. CES-WP-09-10, 2009), 
available at http://ssrn.com/abstract=1444534). The phrasing was 
reworded, and the ACS questions for 2003-2007 became:
    Does this person have any of the following long-lasting conditions: 
a. Blindness, deafness, or a severe vision or hearing impairment? b. A 
condition

[[Page 48436]]

that substantially limits one or more basic physical activities such as 
walking, climbing stairs, reaching, lifting, or carrying? Because of a 
physical, mental, or emotional condition lasting 6 months or more, does 
this person have any difficulty in doing any of the following 
activities: a. Learning, remembering, or concentrating? b. Dressing, 
bathing, or getting around inside the home? Because of a physical, 
mental, or emotional condition lasting 6 months or more, does this 
person have any difficulty in doing any of the following activities: a. 
(Answer if this person is 15 YEARS OLD OR OVER.) Going outside the home 
alone to shop or visit a doctor's office? b. (Answer if this person is 
15 YEARS OLD OR OVER.) Working at a job or business?

Comparing CPS-ASEC and ACS Estimates

    Key differences exist between the nationally-representative surveys 
that are largely used to generate statistics covering the population 
with disabilities. Researchers have noted a positive correlation 
between the number of disability items on a survey and the prevalence 
of disability.\4\ In particular, this means that the lengthier list of 
disability questions (six in the ACS as compared with one in the CPS-
ASEC) may capture more people with disabilities. The definition of 
employment, which defines the population in the labor force, may also 
differ in these two surveys.
---------------------------------------------------------------------------

    \4\ Statistics derived using the CPS-ASEC, ACS, National Health 
Interview Survey (NHIS), and Survey of Income and Program 
Participation (SIPP) demonstrate this trend well. The number of 
people who report at least one disability and are employed is lowest 
in the CPS-ASEC and is highest in the NHIS and SIPP, both of which 
have over 20 disability indicators. Additional measures may result 
in the inclusion of individuals with temporary health or functional 
limitations.
---------------------------------------------------------------------------

    Table 3 below, produced by Dr. Bjelland from Cornell, uses the CPS-
ASEC to provide an overview of the number of disabled individuals in 
the workforce over time. It uses present data from the CPS-ASEC rather 
than from the ACS because they cover a lengthier time period (1999 
onward, as compared with 2003 onward). Additionally, because 
individuals with employment (or work limitation) disabilities are 
expected to be most likely to request reasonable accommodation in the 
workplace, they are the target population of interest.

  Table 3--Population With Disabilities Using Current Population Survey
                             Data, 1999-2007
------------------------------------------------------------------------
                                                            Labor force
                                           Workers with    participants
                  Year                     disabilities        with
                                                           disabilities
------------------------------------------------------------------------
1999....................................       3,207,218       3,588,806
2000....................................       3,545,209       3,889,798
2001....................................       3,187,276       3,533,647
2002....................................       3,081,585       3,574,294
2003....................................       2,835,976       3,414,687
2004....................................       3,146,749       3,727,859
2005....................................       3,067,059       3,579,808
2006....................................       3,200,808       3,698,593
2007....................................       3,042,300       3,497,321
------------------------------------------------------------------------
Note: Disability is defined using the CPS work limitation variable,
  ``Does anyone in this household have a health problem or disability
  which prevents them from working or which limits the kind or amount of
  work they can do? [If so,] who is that? Anyone else?'' The sample is
  comprised of CPS respondents ages 16 and older.
Statistics generated by Cornell University's Employment and Disability
  Institute on 2009-07-02 and provided by Melissa J. Bjelland, Ph.D.

    The counts presented in Table 3 are supported by other sources of 
information regarding individuals with employment disabilities. While 
according to data from the ACS, 8,229,000 people ages 21-64 reported 
one of the six ACS-defined disabilities and were employed in 2007, only 
2,263,000 had an employment disability and were employed (Erickson, W., 
& Lee, C., Rehabilitation Research & Training Center on Disability--
Demographics and Statistics, 2007 Disability Status Reports: United 
States 25 (2008)). This is fairly consistent with the results from the 
CPS-ASEC--2,594,000 people ages 21-64 had a work limitation and were 
employed in 2007 (Melissa J. Bjelland et al., Rehabilitation Research 
and Training Center on Disability Demographics and Statistics, 
Disability Statistics from the Current Population Survey (CPS) 
(2008)).\5\
---------------------------------------------------------------------------

    \5\ Note that the sample population used to construct Table 3 
covers all people ages 16 and older in the CPS-ASEC, not just the 
number of people 21-64 as is the case from the results cited from 
DisabilityStatistics.org, and are therefore slightly larger. All 
labor force participants are covered by the ADA, not just those who 
are of traditional working age.
---------------------------------------------------------------------------

    These figures are reinforced by the 2004 National Organization on 
Disability N.O.D./Harris Survey, which reports that just over one-third 
(35 percent) of people ages 18-64 with disabilities are employed 
compared to more than three-quarters of those without disabilities 
(National Organization on Disability, Survey Program on Participation 
and Attitudes (2004)). These figures have not changed from those 
reported in the comparable 1986 poll.
    The alternative ACS six question definition of disability results 
in 6,217,000 disabled workers in July 2009. (See http://www.bls.gov/cps/cpsdisability.htm, downloaded September 2, 2009).
    Certainly an effort to return to what is, in essence, an earlier 
definition of workers with disabilities is unlikely to increase the 
number of workers requesting reasonable accommodations.
    While this provides an outer boundary estimate of the number of 
affected workers, it is far too broad to gauge the impact of the ADA 
Amendments. In some sense the amendments affect those workers that have 
always been covered by the ADA. Arguably, the amendments may cause an 
increase in requests for reasonable accommodation, particularly from 
individuals whom section 1630.2(j)(5) of the proposed rule says will 
consistently meet the definition of ``disability''--that is, 
individuals with autism, cancer, cerebral palsy, diabetes, epilepsy, 
HIV or AIDS, multiple sclerosis and muscular dystrophy, and individuals 
with depression, bipolar disorder, obsessive-compulsive disorder, post-
traumatic stress disorder, or schizophrenia. But the exact number is 
difficult to estimate, because it requires an assumption that such 
individuals now perceive themselves as protected by the law when they 
previously assumed they were not.
    One measure of this type of impact might be an increase in the 
number of charges filed by workers with these impairments. EEOC charge 
receipts were tallied for the period of June through December 2008 
(pre-amendments) and January through July 2009 (post-amendments) for 
ADA charges (including those concurrent with other statutes) filed with 
EEOC. The difference between the numbers of charges for each reported 
basis was computed and the mean difference per each basis was 
calculated at 46. The process was just repeated for those bases listed 
above and the mean difference was 43. Thus, increases in those bases 
associated with Sec.  1630.2(j)(5) of the proposed rule were less than 
that of all bases during the period. This suggests that there may not 
be a perception of increased or modified protection by workers with the 
impairments mentioned in Sec.  1630.2(j)(5).
    A second approach is to estimate the number of workers with these 
impairments and then determine what percentage would request reasonable 
accommodation. Again, this data is not readily available. However, the 
Centers

[[Page 48437]]

for Disease Control publishes data regarding the prevalence of most of 
these disabilities. See ``Main cause of disability among civilian non-
institutionalized U.S. adults aged 18 years or older with self reported 
disabilities, estimated affected population and percentages, by sex--
United States, 2005,'' http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5816a2.htm (Table 1) (last visited September 15, 2009). Not all of 
the cited disabilities are included here, but the following are: cancer 
(1 million or 2.2 percent), cerebral palsy (223,000 or 0.5 percent), 
diabetes (2 million or 4.5 percent), epilepsy (256,000 or 0.6 percent), 
AIDS or AIDS related condition (90,000 or 0.2 percent), ``mental or 
emotional'' impairment (2.2 million 4.9 percent)--a total of 5.8 
million people or 13 percent of the civilian non-institutionalized 
adults. Thus, if we assume that people with these health conditions 
make up approximately 13 percent of workers with work limitation 
disabilities, an estimate of the number of workers who might request 
reasonable accommodations as the result of the ADA Amendments Act would 
be 450,000 (3.5 million times 0.13). However, this may be an 
underestimate given that this accounts for only workers with ``work 
limitation'' disabilities based on CPS-ASEC data. Instead, if we assume 
that 13 percent of 8.2 million employed persons who report a disability 
(based on ACS data reported above) have these health conditions, 
approximately 1 million individuals would consistently meet the 
definition of ``disability.''

Requests for Accommodation

    As discussed above, one million additional workers represents an 
upper bound of those who would consistently meet the definition of 
``disability'' under the ADA Amendments Act.\6\ Not all employees with 
disabilities, however, report that they need a reasonable 
accommodation. ``Of the 4,937 individuals in our study population, a 
relatively small proportion (16%) reported needing any of the 17 
accommodations [that the authors list] (Craig Zwerling et al., 
Workplace Accommodations for People with Disabilities: National Health 
Interview Survey Disability Supplement, 1994-1995, 45 J. Occupational & 
Envtl. Med. 517 (2003)).'' On the other hand, Nishii and Bruy[egrave]re 
report that 82 percent of disabled employees in their study request an 
accommodation.\7\ Certainly, the costs of reasonable accommodation 
cannot be assumed for all workers with disabilities, but it is not 
clear how much this factor reduces costs.
---------------------------------------------------------------------------

    \6\ There is no data that enables us to determine whether, or to 
what extent, the remaining workers with disabilities would request 
or would be entitled to reasonable accommodation as the result of 
the ADA Amendments Act. It appears, however, that workers with the 
kinds of impairments mentioned in section 1630.2(j)(5) would be most 
likely to request accommodations as a result of the proposed rule, 
because they would have the greatest assurance that their 
impairments would ``consistently'' meet the definition of 
``disability.''
    \7\ Disparities may be accounted for both by the fact that the 
samples were different, and by the fact that Nishii and 
Bruy[egrave]re listed 20 different accommodations. Additionally 
Nishii and Bruy[egrave]re also report that 82% of non-disabled 
employees also requested an accommodation. Across the entire 
organization, 91% of all accommodation requests were made by people 
without disabilities, with only 9% of them being made by people with 
disabilities. Across all 20 of their accommodation types, there was 
not one for which a larger proportion of the accommodations made 
were for people with disabilities (in every case, the majority of 
that type of accommodation was made for people without 
disabilities).
---------------------------------------------------------------------------

    If we assume only 16 percent of the ``covered'' disabled work force 
request accommodations as Zwerling et al. suggest, the number of 
requested accommodations would drop to 160,000 requests for 
accommodation. Table 4 shows potential costs based on this projected 
number of requests.

Table 4--Estimated Reasonable Accomodation Costs With 16 Percent Request
                                  Rate
------------------------------------------------------------------------
 Average accommodation                              Accommodations over
          cost             Total cost (million)    five years (million)
------------------------------------------------------------------------
              $462                      $74                      $15
               865                      138                       28
             1,434                      229                       46
------------------------------------------------------------------------

    Under this assumption, only if all requests occur in the first year 
does the estimated cost exceed $100 million.
    As an upper bound estimate, if we assumed that 82 percent of these 
workers will request an accommodation, the number of requests would be 
820,000 requests for accommodation. Table 5 shows potential costs based 
on the various estimates of reasonable accommodation costs discussed 
here.

Table 5--Estimated Reasonable Accomodation Costs With 82 Percent Request
                                  Rate
------------------------------------------------------------------------
 Average accommodation                              Accommodations over
          cost             Total cost (million)    five years (million)
------------------------------------------------------------------------
              $462                     $379                      $76
               865                      709                      142
             1,434                    1,176                      235
------------------------------------------------------------------------

    Here, under this upper bound scenario, even if the requests come 
over a five year period then annual costs may exceed $100 million 
except when the lowest estimate of reasonable accommodation costs is 
assumed.\8\
---------------------------------------------------------------------------

    \8\ Using the count of disabled workers provided in Table 3 as a 
lower bound, the mean costs of reasonable accommodation would range 
from $6.7 million to $104.3 million.
---------------------------------------------------------------------------

    Of course these estimates assume that all requests will result in 
an accommodation. However, Schartz et al. report that ``[i]n almost 43% 
(379) of accommodation inquiries by employers [to JAN], the respondents 
had implemented, or were in the process of implementing, an 
accommodation solution.'' (Schartz et al., at 347). It is possible then 
that all of these estimates are at least twice as great as is likely.

[[Page 48438]]

Administrative Costs

    There are some additional potential costs. Covered employers that 
changed their internal policies and procedures, in response to the 
Supreme Court decisions that the ADA Amendments Act has overturned, 
will need to update their existing internal policies and procedures to 
reflect the broader definition of disability and train personnel to 
ensure appropriate compliance with the revised regulation. As 
previously discussed, smaller entities are less likely to have detailed 
reasonable accommodation procedures containing information relating to 
the definition of disability that must be revised or deleted. However, 
larger firms such as the 18,000 firms with more than 500 employees, are 
more likely to have formal procedures that may need to be revised.\9\ 
More universal will be costs required to review and analyze the final 
regulation. In addition, to the extent that the revised regulation 
increases the number of requests for accommodation, there may be 
additional costs associated with processing and adjudicating the 
requests, though these costs may be offset in part by the fact that 
application of the revised definition of ``disability'' will decrease 
the time spent processing accommodation requests generally.
---------------------------------------------------------------------------

    \9\ http://www.sba.gov/advo/research/us_06ss.pdf.
---------------------------------------------------------------------------

    A rough estimate of administrative costs might be based on days of 
human resource managers time estimated at $681\10\ plus some training 
costs for that manager. EEOC provides such outreach sessions at 
approximately $350. So a rough estimate of these administrative costs 
might be $1,031. These figures will underestimate costs at large firms 
but will overestimate costs at small firms and at firms who either do 
not have to alter their policies. This level of costs seems appropriate 
for large firms of at least 150 employees (approximately 68,306 firms 
based on the SBA data cited below). This would result in a one time 
cost of approximately $70 million. However, the Commission was unable 
to identify empirical research to demonstrate such costs; therefore, 
this is considered to be a very rough estimate.
---------------------------------------------------------------------------

    \10\ Occupational Outlook Handbook, 2008-09 Editionhttp://
stats.bls.gov/OCO/OCOS021.HTM, downloaded September 2, 2009.
---------------------------------------------------------------------------

    Finally there will be costs to the Commission primarily for 
increased charge workload. The Congressional Budget Office estimated 
these costs.
    H.R. 3195 would increase this workload by no more than 10 
percent in most years, or roughly 2,000 cases annually. Based on 
EEOC staffing levels necessary to handle the agency's current 
caseload, we expect that implementing H.R. 3195 would require 50 to 
60 additional employees. CBO estimates that the costs to hire those 
new employees would reach $5 million by fiscal year 2010, subject to 
appropriation of the necessary amounts.

H.R. 3195, ADA Amendments Act of 2008, Congressional Budget Office, 
June 23, 2008, at 2.

    In conclusion, it appears very unlikely that the promulgation of 
regulations to implement the ADA Amendments Act would create annual 
costs exceeding $100 million per year. However, the data available is 
not prevalent or ideal, so these estimates are volatile. Additionally, 
there might be other regulatory costs that are not anticipated at this 
time. For these reasons, the Commission seeks public comment on such 
costs.

Regulatory Flexibility Act and Unfunded Mandates Act

    The Commission additionally seeks comment from the public during 
the comment period regarding whether, under 5 U.S.C. 605(b), enacted by 
the Regulatory Flexibility Act (Pub. L. 96-354), these regulations will 
have a significant economic impact on a substantial number of small 
entities, which will determine whether a regulatory flexibility 
analysis is required. This information will also determine whether the 
proposed rule imposes a burden that requires additional scrutiny under 
the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501, et seq., 
concerning the burden imposed on state, local, or tribal governments.
    The Commission's preliminary review suggests that the regulations 
will not have a significant economic impact on a substantial number of 
small entities.
    Thirty-five percent of employment covered by the ADA Amendments is 
expected to occur at firms that would be classified as working for 
small businesses (those with less than 500 employees). ``Employer 
Firms, Establishments, Employment, and Annual Payroll Small Firm Size 
Classes, 2006.'' \11\ This represents 1,277,383 (22.5 percent) of 
establishments, or 844,842 (14 percent) of all firms. The rule is 
expected to apply to all of these small establishment firms uniformly.
---------------------------------------------------------------------------

    \11\ Source: U.S. Small Business Administration, Office of 
Advocacy, based on data provided by the U.S. Census Bureau, 
Statistics of U.S. Businesses.
---------------------------------------------------------------------------

Description of the Projected Reporting, Recordkeeping, and other 
Compliance Requirements of the Proposed Rule, Including an Estimate of 
the Classes of Small Entities that Will Be Subject to the Requirement 
and the Long-Term and Short-Term Compliance Costs

    The proposed rule does not include reporting requirements and 
imposes no new recordkeeping requirements. Compliance costs are 
expected to stem primarily from the costs of providing reasonable 
accommodation. The Amendments and proposed rule clarify the definition 
of a disability in response to a limited number of court cases, so it 
is not clear that the Amendments will cause additional requests for 
reasonable accommodation. Therefore it can be argued that no new 
compliance costs will be created. However, the Initial Regulatory 
Impact Analysis provides cost estimates based on two important criteria 
(1) mean reasonable accommodation costs and (2) percent of disabled 
workers requesting reasonable accommodation. Mean reasonable 
accommodation cost used here were $462, (Nishii & Bruy[egrave]re 
(2009)) $865 (Schartz et al. (2006)) and $1,434 (Job Accommodation 
Network (2007)). Estimates of percent of workers with disabilities 
requesting reasonable accommodation varied a great deal from a high of 
82 percent to a lower estimate of 16 percent ((Zwerling et al. (2003); 
Nishii & Bruy[egrave]re (2009)). Table 1 below indicates the cost for 
small businesses when the 82 percent estimate of reasonable 
accommodation costs are used.

                      Table 1--Impact on Small Businesses Based on 82 Percent Request Rate
----------------------------------------------------------------------------------------------------------------
                                    Small business
  Accommodations over five     accommodations over five      Firms from 15 to 499            Cost per firm
      years, all firms                  years                      employees
----------------------------------------------------------------------------------------------------------------
         75,768,000.00                26,518,800.00                     844,842                       31.39
        141,930,520.00                49,675,682.00                     844,842                       58.80
        235,176,000.00                82,311,600.00                     844,842                       97.43
----------------------------------------------------------------------------------------------------------------


[[Page 48439]]

    Under this scenario, costs to small businesses based on an 82 
percent request rate range from $26.5.7 million to $82.3 million.
    Table 2 provides estimates based on the lower request rate of 16 
percent of all workers with disabilities requesting reasonable 
accommodations.

                      Table 2--Impact on Small Businesses Based on 16 Percent Request Rate
----------------------------------------------------------------------------------------------------------------
  Accommodations over five          Small business         Establishments from 15 to
      years, all firms              accommodations               499 employees          Cost per establishment
----------------------------------------------------------------------------------------------------------------
         14,784,000.00                 5,174,400.00                     844,842                        6.12
         27,693,760.00                 9,692,816.00                     844,842                       11.47
         45,888,000.00                16,060,800.00                     844,842                       19.01
----------------------------------------------------------------------------------------------------------------

    With the lower estimated request rate, costs to small business 
range from $5.1 million to $16.1 million.
    A characteristic of small businesses warrants some attention. 
Compared to establishments with 500 or more employers the number of 
establishments is high. The high volume of establishments when applied 
to the expected cost of reasonable accommodation results in a very low 
chance that a small business firm will be asked to make an 
accommodation. The Preliminary Regulatory Impact Analysis uses an upper 
bound estimate that one million workers with disabilities may consider 
themselves to be newly covered, roughly based on the percentages of 
individuals in the population of workers with disabilities who have the 
types of impairments identified in section 1630.2(j)(5) of the proposed 
rule as consistently meeting the definition of ``disability.'' If 82 
percent of these request reasonable accommodations, then there would be 
820,000 requests. With 35 percent of workers employed in small 
businesses, it can be anticipated that small businesses would receive 
287,000 reasonable accommodation requests. If these requests occur over 
a five year period there would be 57,400 per year. When the number of 
small business firms (844,842) is divided by the number of reasonable 
accommodation requests made annually to small businesses, only seven 
firms out of 100 would receive a request. The same calculations based 
on a 13 percent request rate would result in just one in 100 small 
business firms receiving a reasonable accommodation request. An 
effective method for minimizing the impact of this concentration of 
costs among a more limited number of small businesses is the Amendments 
Act's and the new rule's retention of the ``undue hardship'' defense as 
``significant difficulty or expense.''
    There are some additional potential costs. Covered employers that 
changed their internal policies and procedures in response to the 
Supreme Court decisions that the ADA Amendments Act has overturned will 
need to update their existing internal policies and procedures to 
reflect the broader definition of disability and train personnel to 
ensure appropriate compliance with the revised regulation. More 
universal will be costs required to review and analyze the final 
regulation. These types of administrative costs may be particularly 
difficult for small businesses that operate with a smaller margin.
    The following steps, however, are expected to assist in reducing 
the burden on small businesses. The Commission expects to prepare a 
small business handbook and to revise all of its ADA publications, 
which include dozens of enforcement guidances and technical assistance 
documents, some of which are specifically geared toward small business 
(e.g. ``The ADA: A Primer for Small Business'').

Relevant Federal Rules That May Duplicate, Overlap or Conflict With the 
Proposed Rule

    The Commission is unaware of any duplicative, overlapping, or 
conflicting federal rules. The Commission seeks comments and 
information about any such rules.

Paperwork Reduction Act

    These regulations contain no information collection requirements 
subject to review by the Office of Management and Budget under the 
Paperwork Reduction Act (44 U.S.C. 3501, et seq.).

List of Subjects in 29 CFR Part 1630

    Equal employment opportunity, Individuals with disabilities.

    For the Commission.

    Dated: September 16, 2009.
Stuart J. Ishimaru,
Acting Chairman.
    Accordingly, for the reasons set forth in the preamble, EEOC 
proposes to amend 29 CFR part 1630 as follows:

PART 1630--REGULATIONS TO IMPLEMENT THE EQUAL EMPLOYMENT PROVISIONS 
OF THE AMERICANS WITH DISABILITIES ACT

    1. Revise the authority citation for 29 CFR part 1630 to read as 
follows:

    Authority:  42 U.S.C. 12116 and 12205a of the Americans with 
Disabilities Act, as amended.

    2. Revise Sec.  1630.1 to read as follows:


Sec.  1630.1  Purpose, applicability, and construction.

    (a) Purpose. The purpose of this part is to implement title I of 
the Americans with Disabilities Act (42 U.S.C. 12101, et seq., as 
amended) (ADA), requiring equal employment opportunities for qualified 
individuals with disabilities.
    (b) Applicability. This part applies to ``covered entities'' as 
defined at Sec.  1630.2(b).
    (c) Construction--(1) In general. Except as otherwise provided in 
this part, this part does not apply a lesser standard than the 
standards applied under title V of the Rehabilitation Act of 1973 (29 
U.S.C. 790-794a, as amended), or the regulations issued by Federal 
agencies pursuant to that title.
    (2) Relationship to other laws. This part does not invalidate or 
limit the remedies, rights, and procedures of any Federal law or law of 
any State or political subdivision of any State or jurisdiction that 
provides greater or equal protection for the rights of individuals with 
disabilities than are afforded by this part.
    (3) State workers' compensation laws and disability benefit 
programs. Nothing in this part alters the standards for determining 
eligibility for benefits under State workers' compensation laws or 
under State and Federal disability benefit programs.
    (4) The definition of disability in this part shall be construed 
broadly, to the maximum extent permitted by the terms of the ADA.
    3. Amend Sec.  1630.2 by revising paragraphs (g) through (m) and 
adding paragraph (o)(4), to read as follows:

[[Page 48440]]

Sec.  1630.2  Definitions.

* * * * *
    (g) Disability means, with respect to an individual--
    (1) A physical or mental impairment that substantially limits one 
or more of the major life activities of such individual;
    (2) A record of such an impairment; or
    (3) Being regarded as having such an impairment (as described in 
section (l)).

    Note to paragraph (g):  See Sec.  1630.3 for exceptions to this 
definition.

    (h) Physical or mental impairment means:
    (1) Any physiological disorder, or condition, cosmetic 
disfigurement, or anatomical loss affecting one or more of the 
following body systems: Neurological, musculoskeletal, special sense 
organs, respiratory (including speech organs), cardiovascular, 
reproductive, digestive, genitourinary, hemic and lymphatic, skin, and 
endocrine; or
    (2) Any mental or psychological disorder, such as an intellectual 
disability (formerly termed mental retardation), organic brain 
syndrome, emotional or mental illness, and specific learning 
disabilities.
    (i) Major Life Activities are those basic activities, including 
major bodily functions, that most people in the general population can 
perform with little or no difficulty. Major life activities include, 
but are not limited to:
    (1) 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; and
    (2) The operation of major bodily functions, including 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. For example, kidney 
disease affects bladder function; cancer affects normal cell growth; 
diabetes affects functions of the endocrine system (e.g., production of 
insulin); epilepsy affects neurological functions or functions of the 
brain; and Human Immunodeficiency Virus (HIV) and AIDS affect functions 
of the immune system and reproductive functions. Likewise, sickle cell 
disease affects functions of the hemic system, lymphedema affects 
lymphatic functions, and rheumatoid arthritis affects musculoskeletal 
functions.
    (3) No Negative Implication From Omission of Particular Major Life 
Activities or Impairments.
    (i) The list of examples of major life activities in paragraphs 
(i)(1) and (2) of this section is not exhaustive.
    (ii) The list of examples in paragraph (i)(2) of this section is 
intended to illustrate some of the types of major bodily functions that 
may be affected by some types of impairments. The impairments listed 
may affect major life activities other than those specifically 
identified.
    (j) Substantially Limits--(1) In general. An impairment is a 
disability within the meaning of this section if it ``substantially 
limits'' the ability of an individual to perform a major life activity 
as compared to most people in the general population. An impairment 
need not prevent, or significantly or severely restrict, the individual 
from performing a major life activity in order to be considered a 
disability.
    (2) Rules of Construction.
    (i) Consistent with Congress's clearly expressed intent in the ADA 
Amendments Act that the focus of an ADA case should be on whether 
discrimination occurred, not on whether an individual meets the 
definition of ``disability,'' (Section 2(b)(5) (``Findings and 
Purposes''), the term ``substantially limits,'' including the 
application of that term to the major life activity of working, shall 
be construed in favor of broad coverage of individuals to the maximum 
extent permitted by the terms of the ADA and should not require 
extensive analysis.
    (ii) An individual whose impairment substantially limits a major 
life activity need not also demonstrate a limitation in the ability to 
perform activities of central importance to daily life in order to be 
considered an individual with a disability.
    (A) Example 1: Someone with a 20-pound lifting restriction that is 
not of short-term duration is substantially limited in lifting, and 
need not also show that he is unable to perform activities of daily 
living that require lifting in order to be considered substantially 
limited in lifting.
    (B) Example 2: Someone with monocular vision whose depth perception 
or field of vision would be substantially limited, with or without any 
compensatory strategies the individual may have developed, need not 
also show that he is unable to perform activities of central importance 
to daily life that require seeing in order to be substantially limited 
in seeing.
    (iii) An impairment that ``substantially limits'' one major life 
activity need not limit other major life activities in order to be 
considered a disability. To the extent cases pre-dating the 2008 
Amendments Act reasoned otherwise, they are contrary to the law as 
amended. 2008 House Judiciary Committee Report at 19.
    (A) Example 1: An individual whose endocrine system is 
substantially limited due to diabetes need not also show that he is 
substantially limited in eating or any other major life activity.
    (B) Example 2: An individual whose normal cell growth is 
substantially limited due to cancer need not also show that he is 
substantially limited in working or any other major life activity.
    (iv) The comparison of an individual's limitation to the ability of 
most people in the general population often may be made using a common-
sense standard, without resorting to scientific or medical evidence. 
2008 Senate Managers' Statement at 7.
    (A) Example 1: An individual with epilepsy will meet the definition 
of disability because he is substantially limited in major life 
activities such as functions of the brain or, during a seizure, 
functions such as seeing, hearing, speaking, walking, or thinking;
    (B) Example 2: An individual with diabetes will meet the definition 
of disability because he is substantially limited in functions of the 
endocrine system. (See paragraph (j)(5) of this section.)
    (v) The ``transitory and minor'' exception in Sec.  1630.2(l) of 
this part (the ``regarded as'' prong of the definition of 
``disability'') does not establish a durational minimum for the 
definition of ``disability'' under Sec.  1630.2(g)(1) (actual 
disability) or Sec.  1630.2(g)(2) (record of a disability). An 
impairment may substantially limit a major life activity even if it 
lasts, or is expected to last, for fewer than six months.
    (vi) In determining whether an individual has a disability, the 
focus is on how a major life activity is substantially limited, not on 
what an individual can do in spite of an impairment. (See, e.g., 
paragraph (j)(6)(i)(C) of this section.)
    (3) Ameliorative Effects of Mitigating Measures Not Considered--
    (i) The ameliorative effects of mitigating measures shall not be 
considered in determining whether an impairment substantially limits a 
major life activity. To the extent cases pre-dating the 2008 Amendments 
Act reasoned otherwise, they are contrary to the law as amended. See 
2008 House Judiciary Committee Report at 20-21 (citing, e.g., McClure 
v. General Motors

[[Page 48441]]

Corp., 75 Fed. Appx. 983 (5th Cir. 2003) (court held that individual 
with muscular dystrophy who with the mitigating measure of ``adapting'' 
how he performed manual tasks had successfully learned to live and work 
with his disability was therefore not an individual with a disability); 
Orr v. Wal-Mart Stores, Inc., 297 F.3d 720 (8th Cir. 2002) (court held 
that Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), required 
consideration of the ameliorative effects of plaintiff's careful 
regimen of medicine, exercise and diet, and declined to consider impact 
of uncontrolled diabetes on plaintiff's ability to see, speak, read, 
and walk); Todd v. Academy Corp., 57 F. Supp. 2d 448, 452 (S.D. Tex. 
1999) (court held that because medication reduced the frequency and 
intensity of plaintiff's seizures, he was not disabled)).
    (ii) Mitigating measures include, but are not limited to:
    (A) Medication, medical supplies, equipment, or appliances, low-
vision devices (defined as devices that magnify, enhance, or otherwise 
augment a visual image, but not including ordinary eyeglasses or 
contact lenses), prosthetics including limbs and devices, hearing aids 
and cochlear implants or other implantable hearing devices, mobility 
devices, or oxygen therapy equipment and supplies;
    (B) Use of assistive technology;
    (C) Reasonable accommodations or ``auxiliary aids or services'' (as 
defined by 42 U.S.C. 12103(1));
    (D) Learned behavioral or adaptive neurological modifications; or
    (E) Surgical interventions, except for those that permanently 
eliminate an impairment.
    (iii) An individual who, because of use of medication or another 
mitigating measure, has experienced no limitations, or only minor 
limitations, related to an impairment nevertheless has a disability if 
the impairment would be substantially limiting without the mitigating 
measure.
    (A) Example 1: An individual who is taking a psychiatric medication 
for depression, or insulin for diabetes, or anti-seizure medication for 
a seizure disorder has a disability if there is evidence that the 
mental impairment, the diabetes, or the seizure disorder, if left 
untreated, would substantially limit a major life activity.
    (B) Example 2: An individual who uses hearing aids, a cochlear 
implant, or a telephone audio device due to a hearing impairment is an 
individual with a disability where, without the benefit of the 
mitigating measure, he would be substantially limited in the major life 
activity of hearing or any other major life activity.
    (iv) The ameliorative effects of ordinary eyeglasses or contact 
lenses shall be considered when determining whether an impairment 
substantially limits a major life activity. The term ``ordinary 
eyeglasses or contact lenses'' is defined in the ADA as amended as 
lenses that are ``intended to fully correct visual acuity or to 
eliminate refractive error.''
    (A) Example 1: An individual with severe myopia whose visual acuity 
is fully corrected, is not substantially limited in seeing, because the 
ameliorative effects of the lenses must be considered in determining 
whether the individual is substantially limited in seeing.
    (B) Example 2: If the only visual loss an individual experiences 
affects the ability to see well enough to read, and the individual's 
ordinary reading glasses are intended to completely correct for this 
visual loss, the ameliorative effects of using the reading glasses must 
be considered in determining whether the individual is substantially 
limited in seeing.
    (C) Example 3: Eyeglasses or contact lenses that are the wrong 
prescription or an outdated prescription may nevertheless be 
``ordinary'' eyeglasses or contact lenses, if there is evidence that a 
proper prescription would fully correct visual acuity or eliminate 
refractive error.
    (4) Impairments that are Episodic or in Remission. An impairment 
that is episodic or in remission is a disability if it would 
substantially limit a major life activity when active. Examples may 
include, but are not limited to, impairments such as epilepsy, 
hypertension, multiple sclerosis, asthma, cancer, and psychiatric 
disabilities such as depression, bipolar disorder, and post-traumatic 
stress disorder.
    (5) Examples of Impairments that Will Consistently Meet the 
Definition of Disability--(i) Interpreting the definition of disability 
broadly and without extensive analysis as required under the ADA 
Amendments Act, some types of impairments will consistently meet the 
definition of disability. Because of certain characteristics associated 
with these impairments, the individualized assessment of the 
limitations on a person can be conducted quickly and easily, and will 
consistently result in a determination that the person is substantially 
limited in a major life activity. In addition to examples such as 
deafness, blindness, intellectual disability (formerly termed mental 
retardation), partially or completely missing limbs, and mobility 
impairments requiring the use of a wheelchair, other examples of 
impairments that will consistently meet the definition include, but are 
not limited to--
    (A) Autism, which substantially limits major life activities such 
as communicating, interacting with others, or learning;
    (B) Cancer, which substantially limits major life activities such 
as normal cell growth;
    (C) Cerebral palsy, which substantially limits major life 
activities such as walking, performing manual tasks, speaking, or 
functions of the brain;
    (D) Diabetes, which substantially limits major life activities such 
as functions of the endocrine system (e.g., the production of insulin, 
see 2008 House Judiciary Committee Report at 17);
    (E) Epilepsy, which substantially limits major life activities such 
as functions of the brain or, during a seizure, seeing, hearing, 
speaking, walking, or thinking;
    (F) HIV or AIDS, which substantially limit functions of the immune 
system;
    (G) Multiple sclerosis and muscular dystrophy, which substantially 
limit major life activities including neurological functions, walking, 
performing manual tasks, seeing, speaking, or thinking;
    (H) Major depression, bipolar disorder, post-traumatic stress 
disorder, obsessive compulsive disorder, or schizophrenia, which 
substantially limit major life activities including functions of the 
brain, thinking, concentrating, interacting with others, sleeping, or 
caring for oneself.
    (ii) No Negative Implication From Omission of Particular Major Life 
Activities. An individual with one of the impairments listed in 
paragraph (j)(5)(i) of this section may be substantially limited in one 
or more of the major life activities identified, and/or may be 
substantially limited in other major life activities.
    (iii) No Negative Implication From Omission of Particular 
Impairments. The list of examples in paragraph (j)(5)(i) of this 
section is merely intended to illustrate some of the types of 
impairments that are consistently substantially limiting. Other types 
of impairments not specifically identified in the examples included in 
paragraph (j)(5)(i) of this section may also consistently be 
substantially limiting, such as some forms of depression other than 
major depression and seizure disorders other than epilepsy.

[[Page 48442]]

    (6) Examples of Impairments that May Be Disabling for Some 
Individuals But Not For Others--(i) In addition to the examples in 
paragraph (j)(5) of this section of types of impairments that will 
consistently meet the definition of disability, other types of 
impairments may be disabling for some individuals but not for others, 
and therefore may require more analysis in order to determine whether 
or not they substantially limit an individual in performing of a major 
life activity. The standards for determining whether such an impairment 
has been shown to be a disability are intended to be construed in favor 
of broad coverage, and should not demand an extensive analysis. The 
following examples illustrate some of the ways in which such 
impairments may (with or without the use of mitigating measures) 
substantially limit a major life activity.
    (A) Example 1: An individual with asthma who is substantially 
limited in respiratory functions and breathing compared to most people, 
as indicated by the effects experienced when exposed to substances such 
as cleaning products, perfumes, and cigarette smoke, is an individual 
with a disability.
    (B) Example 2: An individual with high blood pressure who is 
substantially limited in the functions of the circulatory system 
compared to most people, as indicated by the decrease in blood 
circulation caused by narrowing of the blood vessels, is an individual 
with a disability.
    (C) Example 3: An individual with a learning disability who is 
substantially limited in reading, learning, thinking, or concentrating 
compared to most people, as indicated by the speed or ease with which 
he can read, the time and effort required for him to learn, or the 
difficulty he experiences in concentrating or thinking, is an 
individual with a disability, even if he has achieved a high level of 
academic success, such as graduating from college. The determination of 
whether an individual has a disability does not depend on what an 
individual is able to do in spite of an impairment.
    (D) Example 4: An individual with a back or leg impairment who is 
substantially limited compared to most people in the length of time she 
can stand, the distance she can walk, or the weight she can lift, is an 
individual with a disability (such as where the individual has a back 
impairment resulting in a 20-pound lifting restriction that is expected 
to last for several months or more).
    (E) Example 5: An individual with a psychiatric impairment (such as 
panic disorder, anxiety disorder, or some forms of depression other 
than major depression), who is substantially limited compared to most 
people, as indicated by the time and effort required to think or 
concentrate, the diminished capacity to effectively interact with 
others, the length or quality of sleep the individual gets, the 
individual's eating patterns or appetite, or the effect on other major 
life activities, is an individual with a disability.
    (F) Example 6: An individual with carpal tunnel syndrome who is 
substantially limited in performing manual tasks compared to most 
people, as indicated by the amount of pain experienced when writing or 
using a computer keyboard or the length of time for which such manual 
tasks can be performed, is an individual with a disability.
    (G) Example 7: An individual with hyperthyroidism who is 
substantially limited in the functioning of the endocrine system 
compared to most people, as indicated by overproduction of a hormone 
that controls metabolism, is an individual with a disability, because a 
major bodily function may be substantially limited when an impairment 
``causes the operation [of the bodily function] to over-produce or 
under-produce in some harmful fashion.'' (2008 House Judiciary 
Committee Report at 17).
    (ii) No Negative Implication From Omission of Particular Major Life 
Activities. An individual with one of the impairments listed in 
paragraph (j)(6)(i) of this section may be substantially limited in one 
or more of the major life activities identified, and/or in other major 
life activities.
    (iii) No Negative Implication From Omission of Particular 
Impairments. The list of examples in paragraph (j)(6)(i) of this 
section is merely intended to illustrate some of the types of 
impairments that may be substantially limiting. Impairments other than 
those specifically listed in paragraph (j)(6)(i) of this section may 
also substantially limit major life activities.
    (7) With respect to the major life activity of working,--
    (i) An individual with a disability will usually be substantially 
limited in another major life activity, therefore generally making it 
unnecessary to consider whether the individual is substantially limited 
in working.
    (ii) An impairment substantially limits the major life activity of 
working if it substantially limits an individual's ability to perform, 
or to meet the qualifications for, the type of work at issue. Whether 
an impairment substantially limits the major life activity of working 
must be construed broadly to the maximum extent permitted under the ADA 
and should not demand extensive analysis.
    (iii) Type of Work
    (A) The type of work at issue includes the job the individual has 
been performing, or for which the individual is applying, and jobs with 
similar qualifications or job-related requirements which the individual 
would be substantially limited in performing because of the impairment.
    (B) The type of work at issue may often be determined by reference 
to the nature of the work an individual is substantially limited in 
performing because of an impairment as compared to most people having 
comparable training, skills, and abilities. Examples of types of work 
include, but are not limited to: Commercial truck driving (i.e., 
driving those types of trucks specifically regulated by the U.S. 
Department of Transportation as commercial motor vehicles), assembly 
line jobs, food service jobs, clerical jobs, or law enforcement jobs.
    (C) The type of work at issue may also be determined by reference 
to job-related requirements that an individual is substantially limited 
in meeting because of an impairment as compared to most people 
performing those jobs. Examples of job-related requirements that are 
characteristic of types of work include, but are not limited to, jobs 
requiring: Repetitive bending, reaching, or manual tasks; repetitive or 
heavy lifting; prolonged sitting or standing; extensive walking; 
driving; working under certain conditions, such as in workplaces 
characterized by high temperatures, high noise levels, or high stress; 
or working rotating, irregular, or excessively long shifts.
    (1) Example 1: Carpal tunnel syndrome that does not substantially 
limit a machine operator in the major life activity of performing 
manual tasks when compared with most people in the general population 
nevertheless substantially limits her in the major life activity of 
working if the impairment substantially limits her ability to perform 
her job and other jobs requiring similar repetitive manual tasks.
    (2) Example 2: An impairment that does not substantially limit an 
individual's ability to stand as compared to most people in the general 
population nevertheless substantially limits an individual in working 
if it substantially limits his ability to perform his job and other 
jobs that require standing for extended periods of time (e.g., jobs in 
the retail industry).

[[Page 48443]]

    (3) Example 3: An impairment that does not substantially limit an 
individual's ability to lift as compared to most people in the general 
population nevertheless substantially limits the individual in working 
if it substantially limits his ability to perform his job and other 
jobs requiring frequent heavy lifting.
    (4) Example 4: A permanent knee impairment that does not 
substantially limit an individual's ability to walk as compared to most 
people in the general population nevertheless substantially limits the 
individual in working if it substantially limits her in performing the 
job for which she is applying and other jobs that require walking long 
distances.
    (iv) Evidence of Ability to Obtain Employment Elsewhere. The fact 
that an individual has obtained employment elsewhere is not dispositive 
of whether an individual is substantially limited in working.
    (A) Example 1: Someone who, because of an impairment, cannot 
perform work that requires repetitive bending or heavy lifting is 
substantially limited in working, even if he also has skills that would 
qualify him to perform jobs that do not include these requirements.
    (B) Example 2: An individual whose impairment substantially limits 
the ability to do repetitive tasks associated with certain 
manufacturing positions and who is denied a reasonable accommodation 
for a manufacturing job by his employer could be substantially limited 
in working, even if the individual performed similar work for another 
employer who provided an accommodation for this limitation.
    (8) Impairments That Are Usually Not Disabilities. Temporary, non-
chronic impairments of short duration with little or no residual 
effects (such as the common cold, seasonal or common influenza, a 
sprained joint, minor and non-chronic gastrointestinal disorders, or a 
broken bone that is expected to heal completely) usually will not 
substantially limit a major life activity.
    (k) Has a record of such an impairment--(1) An individual has a 
record of a disability if the individual has a history of, or has been 
misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (i) Example 1: An applicant who in the past was diagnosed with 
prostate cancer that was treated, and whose doctor says he no longer 
has cancer, nevertheless has a ``record of'' a substantially limiting 
impairment.
    (ii) Example 2: An employee who in the past was misdiagnosed with 
bipolar disorder and hospitalized as the result of a temporary reaction 
to medication she was taking has a record of a substantially limiting 
impairment, even though she did not actually have bipolar disorder.
    (2) Broad Construction. Whether an individual has a record of an 
impairment that substantially limited a major life activity shall be 
construed broadly to the maximum extent permitted by the ADA and should 
not demand extensive analysis. An individual will be considered to have 
a record of a disability if the individual has a history of an 
impairment that substantially limited one or more major life activities 
when compared to most people in the general population, or was 
misclassified as having had such an impairment.
    (l) ``Is regarded as having such an impairment''--(1) In General. 
An individual is ``regarded as'' having a disability if the individual 
is subjected to an action prohibited by this part, including non-
selection, demotion, termination, or denial of any other term, 
condition, or privilege of employment, based on an actual or perceived 
physical or mental impairment, whether or not the impairment limits or 
is perceived to limit a major life activity. Proof that the individual 
was subjected to a prohibited employment action, e.g., excluded from 
one job, because of an impairment (other than an impairment that is 
transitory and minor, as discussed below) is sufficient to establish 
coverage under the ``regarded as'' definition. 2008 House Committee on 
Educ. and Labor Report at 12-14; 2008 Senate Managers' Statement at 9-
10. Evidence that the employer believed the individual was 
substantially limited in any major life activity is not required.
    (2) Actions Taken Based on Symptoms of an Impairment or Based on 
Use of Mitigating Measures. A prohibited action based on an actual or 
perceived impairment includes, but is not limited to, an action based 
on a symptom of such an impairment, or based on medication or any other 
mitigating measure used for such an impairment.
    (i) Example 1: An individual who is not hired for a driving job 
because he takes anti-seizure medication is regarded as having a 
disability, even if the employer is unaware of the reason the employee 
is taking the medication.
    (ii) Example 2: An employer that refuses to hire someone with a 
facial tic regards the individual as having a disability, even if the 
employer does not know that the facial tic is caused by Tourette's 
Syndrome.
    (3) Impairments That Are Transitory and Minor. An individual may 
not establish coverage under this prong where the impairment that is 
the basis for the covered entity's action is both transitory (lasting 
or expected to last for six months or less) and minor.
    (i) Example 1: An individual who is not hired for a data entry 
position because he will be unable to type for three weeks due to a 
sprained wrist is not regarded as disabled, because a sprained wrist is 
transitory and minor.
    (ii) Example 2: An individual who is placed on involuntary leave 
because of a broken leg that is expected to heal normally is not 
regarded as disabled, because the broken leg is transitory and minor.
    (iii) Example 3: An individual who is not hired for an assembly 
line job by an employer who believes she has carpal tunnel syndrome 
would be regarded as disabled, because carpal tunnel syndrome is not 
transitory and minor.
    (iv) Example 4: An individual who is fired from a food service job 
because the employer believes he has Hepatitis C is regarded as 
disabled, because Hepatitis C is not transitory and minor.
    (v) Example 5: An individual who is terminated because an employer 
believes that symptoms attributable to a mild intestinal virus are 
actually symptoms of heart disease is regarded as disabled, because 
heart disease--the impairment the employer believes the individual 
has--is not transitory and minor.
    (m) The term ``qualified,'' with respect to an individual with a 
disability, means that the individual satisfies the requisite skill, 
experience, education and other job-related requirements of the 
employment position such individual holds or desires, and who, with or 
without reasonable accommodation, can perform the essential functions 
of such position. (See Sec.  1630.3 for exceptions to this definition.)
* * * * *
    (o) * * *
    (4) An employer is required, absent undue hardship, to provide 
reasonable accommodation to a qualified individual with a substantially 
limiting impairment or a ``record of'' such an impairment, but is not 
required to provide a reasonable accommodation to an individual who 
meets the definition of disability solely under the ``regarded as'' 
prong.
* * * * *
    4. Revise Sec.  1630.4 to read as follows:


Sec.  1630.4  Discrimination prohibited.

    (a) In General. (1) It is unlawful for a covered entity to 
discriminate on the

[[Page 48444]]

basis of disability against a qualified individual in regard to:
    (i) Recruitment, advertising, and job application procedures;
    (ii) Hiring, upgrading, promotion, award of tenure, demotion, 
transfer, layoff, termination, right of return from layoff, and 
rehiring;
    (iii) Rates of pay or any other form of compensation and changes in 
compensation;
    (iv) Job assignments, job classifications, organizational 
structures, position descriptions, lines of progression, and seniority 
lists;
    (v) Leaves of absence, sick leave, or any other leave;
    (vi) Fringe benefits available by virtue of employment, whether or 
not administered by the covered entity;
    (vii) Selection and financial support for training, including: 
Apprenticeships, professional meetings, conferences and other related 
activities, and selection for leaves of absence to pursue training;
    (viii) Activities sponsored by a covered entity including social 
and recreational programs; and
    (ix) Any other term, condition, or privilege of employment.
    (2) The term discrimination includes, but is not limited to, the 
acts described in Sec. Sec.  1630.4 through 1630.13 of this part.
    (b) Claims of No Disability. Nothing in this part shall provide the 
basis for a claim that an individual without a disability was subject 
to discrimination because of his lack of disability, including a claim 
that an individual with a disability was granted an accommodation that 
was denied to an individual without a disability.
    5. Amend Sec.  1630.9 by revising paragraph (c) and adding 
paragraph (e) to read as follows:


Sec.  1630.9  Not making reasonable accommodation.

* * * * *
    (c) A covered entity shall not be excused from the requirements of 
this part because of any failure to receive technical assistance 
authorized by section 507 of the ADA, including any failure in the 
development or dissemination of any technical assistance manual 
authorized by that Act.
* * * * *
    (e) The reasonable accommodation requirements set forth in this 
part apply to an individual with a substantially limiting impairment or 
a record of a substantially limiting impairment. A covered entity is 
not required to provide a reasonable accommodation to an individual who 
is only ``regarded as'' disabled within the meaning of Sec.  1630.2(l) 
of this part.
    6. Revise Sec.  1630.10 to read as follows:


Sec.  1630.10  Qualification standards, tests, and other selection 
criteria.

    (a) In general. It is unlawful for a covered entity to use 
qualification standards, employment tests or other selection criteria 
that screen out or tend to screen out an individual with a disability 
or a class of individuals with disabilities, on the basis of 
disability, unless the standard, test, or other selection criteria, as 
used by the covered entity, is shown to be job-related for the position 
in question and is consistent with business necessity.
    (b) Qualification Standards and Tests Related to Uncorrected 
Vision. Notwithstanding paragraph (j)(3)(iv) of Sec.  1630.2 of this 
part, a covered entity shall not use qualification standards, 
employment tests, or other selection criteria based on an individual's 
uncorrected vision unless the standard, test, or other selection 
criteria, as used by the covered entity, is shown to be job-related for 
the position in question and consistent with business necessity.
    7. Amend Sec.  1630.16(a) by removing ``because'' and adding ``on 
the basis'' in its place in the last sentence.
* * * * *
    8. Amend the Appendix to Part 1630 as follows:
    A. Revise the ``Introduction.''
    B. Revise Section 1630.1.
    C. Revise Sections 1630.2(a) through (f).
    D. Revise Section 1630.2(g).
    E. Revise Section 1630.2(i).
    F. Revise Section 1630.2(j).
    G. Revise Section 1630.2(k).
    H. Revise Section 1630.2(l).
    I. Amend Section 1630.2(m) and Section 1630.2(n) by removing the 
term ``qualified'' individual with a disability'' and adding in its 
place ``qualified individual'' and by removing the term ``qualified 
individuals with disabilities'' and adding in its place ``qualified 
individuals.''
    J. Amend Section 1630.2(o) by revising the first paragraph.
    K. Revise Section 1630.4.
    L. Revise the first paragraph in Section 1630.5.
    M. Amend Section 1630.9(a) through (d) to replace the term 
``qualified individual with a disability'' with the term ``qualified 
individual.''
    N. Add Section 1630.9(e).
    O. Revise Section 1630.10.
    P. Amend Section 1630.16(a) by removing ``because'' and adding ``on 
the basis'' in its place in the last sentence.
    The revisions and additions read as follows:

Appendix to Part 1630--Interpretive Guidance on Title I of the 
Americans With Disabilities Act

* * * * *

Introduction

    The Equal Employment Opportunity Commission (the Commission or 
EEOC) is responsible for enforcement of title I of the Americans 
with Disabilities Act (ADA), 42 U.S.C. 12101 et seq., as amended, 
which prohibits employment discrimination on the basis of 
disability. Pursuant to the ADA Amendments Act of 2008, EEOC is 
expressly granted the authority and is expected to amend these 
regulations. The Commission believes that it is essential to issue 
interpretive guidance concurrently with the issuance of this part in 
order to ensure that qualified individuals with disabilities 
understand their rights under this part, and to facilitate and 
encourage compliance by covered entities. This appendix represents 
the Commission's interpretation of the issues discussed, and the 
Commission will be guided by it when resolving charges of employment 
discrimination. The appendix addresses the major provisions of this 
part and explains the major concepts of disability rights. As 
revised effective ----------, this appendix and the accompanying 
regulations reflect the findings and purposes of the ADA Amendments 
Act of 2008, which states, among other things, that the prior EEOC 
regulations defining the term ``substantially limits'' as 
``significantly restricted'' set too high a standard, and that the 
holdings in a series of U.S. Supreme Court and lower court decisions 
had failed to fulfill Congress's expectation that the definition of 
disability under the ADA would be interpreted consistently with the 
broad interpretation of the term ``handicapped'' under section 504 
of the Rehabilitation Act of 1973 and with the broad view of the 
``regarded as'' prong of the definition of ``disability, as first 
enunciated by the Supreme Court in Sch. Bd. of Nassau Cty. v. 
Arline, 480 U.S. 273 (1987). Pursuant to the 2008 amendments, the 
definition of disability in this part shall be construed in favor of 
broad coverage to the maximum extent permitted by the terms of the 
ADA, and the determination of whether an individual has a disability 
should not demand extensive analysis. Statement of the Managers to 
Accompany S. 3406, The Americans with Disabilities Act Amendments 
Act of 2008 (hereinafter 2008 Senate Managers' Statement); Committee 
on Education and Labor Report together with Minority Views (to 
accompany H.R. 3195), H.R. Rep. No. 110-730 part 1, 110th Cong., 2d 
Sess. (June 23, 2008) (hereinafter 2008 House Comm. on Educ. and 
Labor Report); Committee on the Judiciary Report together with 
Additional Views (to accompany H.R. 3195), H.R. Rep. No. 110-730 
part 2, 110th Cong., 2d Sess. (June 23, 2008) (hereinafter 2008 
House Judiciary Committee Report).
    The terms ``employer'' or ``employer or other covered entity'' 
are used interchangeably throughout the appendix to refer to all 
covered entities subject to the employment provisions of the ADA. 
Consistent with the Amendments Act,

[[Page 48445]]

revisions have been made to the regulations and this appendix to 
refer to ``individual with a disability'' and ``qualified 
individual'' as separate terms, and to change the prohibition on 
discrimination to ``on the basis of disability'' instead of 
prohibiting discrimination against a qualified individual ``with a 
disability because of the disability of such individual.'' ``This 
ensures that the emphasis in questions of disability discrimination 
is properly on the critical inquiry of whether a qualified person 
has been discriminated against on the basis of disability, and not 
unduly focused on the preliminary question of whether a particular 
person is a `person with a disability.' '' 2008 Senate Managers' 
Statement at 11.

Section 1630.1 Purpose, Applicability and Construction

 Section 1630.1(a) Purpose

    The Americans with Disabilities Act (ADA) was signed into law on 
July 26, 1990, and amended effective January 1, 2009. The ADA was 
amended by the Americans with Disabilities Act Amendments Act of 
2008, which was signed into law on September 25, 2008, and became 
effective on January 1, 2009. The ADA is an antidiscrimination 
statute that requires that individuals with disabilities be given 
the same consideration for employment that individuals without 
disabilities are given. An individual who is qualified for an 
employment opportunity cannot be denied that opportunity based on 
the fact that the individual has a disability. The purpose of title 
I of the ADA and this part is to ensure that qualified individuals 
with disabilities are protected from discrimination on the basis of 
disability.
    The ADA uses the term ``disabilities'' rather than the term 
``handicaps'' which was originally used in the Rehabilitation Act of 
1973, 29 U.S.C. 701-796. Substantively, these terms are equivalent. 
As noted by the House Committee on the Judiciary, ``[t]he use of the 
term `disabilities' instead of the term `handicaps' reflects the 
desire of the Committee to use the most current terminology. It 
reflects the preference of persons with disabilities to use that 
term rather than `handicapped' as used in previous laws, such as the 
Rehabilitation Act of 1973 * * *.'' H.R. Rep. No. 485 part 3, 101st 
Cong., 2d Sess. 26-27 (1990) (hereinafter House Judiciary Report); 
see also S. Rep. No. 116, 101st Cong., 1st Sess. 21 (1989) 
(hereinafter Senate Report); H.R. Rep. No. 485 part 2, 101st Cong., 
2d Sess. 50-51 (1990) (hereinafter House Labor Report).
    The use of the term ``Americans'' in the title of the ADA is not 
intended to imply that the Act only applies to United States 
citizens. Rather, the ADA protects all qualified individuals with 
disabilities, regardless of their citizenship status or nationality, 
from discrimination by a covered entity.

 Section 1630.1(b) and (c) Applicability and Construction

    Unless expressly stated otherwise, the standards applied in the 
ADA are not intended to be lesser than the standards applied under 
the Rehabilitation Act of 1973.
    The ADA does not preempt any Federal law, or any State or local 
law, that grants to individuals with disabilities protection greater 
than or equivalent to that provided by the ADA. This means that the 
existence of a lesser standard of protection to individuals with 
disabilities under the ADA will not provide a defense to failing to 
meet a higher standard under another law. Thus, for example, title I 
of the ADA would not be a defense to failing to prepare and maintain 
an affirmative action program under section 503 of the 
Rehabilitation Act. On the other hand, the existence of a lesser 
standard under another law will not provide a defense to failing to 
meet a higher standard under the ADA. See House Labor Report at 135; 
House Judiciary Report at 69-70.
    This also means that an individual with a disability could 
choose to pursue claims under a State discrimination or tort law 
that does not confer greater substantive rights, or even confers 
fewer substantive rights, if the potential available remedies would 
be greater than those available under the ADA and this part. The ADA 
does not restrict an individual with a disability from pursuing such 
claims in addition to charges brought under this part. House 
Judiciary at 69-70.
    The ADA does not automatically preempt medical standards or 
safety requirements established by Federal law or regulations. It 
does not preempt State, county, or local laws, ordinances or 
regulations that are consistent with this part, and are designed to 
protect the public health from individuals who pose a direct threat 
to the health or safety of others that cannot be eliminated or 
reduced by reasonable accommodation. However, the ADA does preempt 
inconsistent requirements established by State or local law for 
safety or security sensitive positions. See Senate Report at 27; 
House Labor Report at 57.
    An employer allegedly in violation of this part cannot 
successfully defend its actions by relying on the obligation to 
comply with the requirements of any State or local law that imposes 
prohibitions or limitations on the eligibility of qualified 
individuals with disabilities to practice any occupation or 
profession. For example, suppose a municipality has an ordinance 
that prohibits individuals with tuberculosis from teaching school 
children. If an individual with dormant tuberculosis challenges a 
private school's refusal to hire him or her on the basis of the 
tuberculosis, the private school would not be able to rely on the 
city ordinance as a defense under the ADA.
    Subparagraph (c)(3) is consistent with language added to section 
501 of the ADA by the ADA Amendments Act of 2008. It makes clear 
that nothing in this part is intended to alter the determination of 
eligibility for benefits under state workers' compensation laws or 
Federal and State disability benefit programs. State workers' 
compensation laws and Federal disability benefit programs, such as 
programs that provide payments to veterans with service-connected 
disabilities and the Social Security Disability Insurance program, 
have fundamentally different purposes from title I of the ADA.

Sections 1630.2(a)-(f) Commission, Covered Entity, etc

    The definitions section of part 1630 includes several terms that 
are identical, or almost identical, to the terms found in title VII 
of the Civil Rights Act of 1964. Among these terms are 
``Commission,'' ``Person,'' ``State,'' and ``Employer.'' These terms 
are to be given the same meaning under the ADA that they are given 
under title VII. In general, the term ``employee'' has the same 
meaning that it is given under title VII. However, the ADA's 
definition of ``employee'' does not contain an exception, as does 
title VII, for elected officials and their personal staffs. It 
should be further noted that all State and local governments are 
covered by title II of the ADA whether or not they are also covered 
by this part. Title II, which is enforced by the Department of 
Justice, became effective on January 26, 1992. See 28 CFR part 35.
    The term ``covered entity'' is not found in title VII. However, 
the title VII definitions of the entities included in the term 
``covered entity'' (e.g., employer, employment agency, etc.) are 
applicable to the ADA.

 Section 1630.2(g) Disability

    In addition to the term ``covered entity,'' there are several 
other terms that are unique to the ADA. The first of these is the 
term ``disability.'' Congress adopted the definition of this term 
from the Rehabilitation Act definition of the term ``individual with 
handicaps.'' By so doing, Congress intended that the relevant case 
law developed under the Rehabilitation Act be generally applicable 
to the term ``disability'' as used in the ADA. Senate Report at 21; 
House Labor Report at 50; House Judiciary Report at 27. The 
definition of the term ``disability'' is divided into three parts. 
An individual must satisfy only one of these parts in order to be 
considered an individual with a disability for purposes of this 
part. However, an individual may satisfy more than one of the three 
``parts'' of the definition of disability. An individual is 
considered to have a ``disability'' if that individual either (1) 
has a physical or mental impairment which substantially limits one 
or more of that person's major life activities, (2) has a record of 
such an impairment, or (3) is regarded by the covered entity as 
having such an impairment. To understand the meaning of the term 
``disability,'' it is necessary to understand, as a preliminary 
matter, what is meant by the terms ``physical or mental 
impairment,'' ``major life activity,'' and ``substantially limits,'' 
``record of,'' and ``regarded as.'' Each of these terms is discussed 
below.
* * * * *

 Section 1630.2(i) Major Life Activities

    ``Major life activities'' are those basic activities, including 
major bodily functions, that most people in the general population 
can perform with little or no difficulty. The inclusion of ``major 
bodily functions'' in the definition of ``major life activities'' is 
consistent with the plain language of the ADA Amendments Act.
    Many of the major life activities listed in the ADA Amendments 
Act and section 1630.2(i)(1) have been referred to in EEOC's 1991 
regulations implementing title I of the ADA and in sub-regulatory 
documents, and by courts. The ADA Amendments expressly made the list 
of major life activities in the

[[Page 48446]]

statute non-exhaustive. Thus, the fact that a major life activity 
that has previously been identified by EEOC or the courts is not in 
the statute ``does not create any negative implication as to whether 
such activity * * * constitutes a `major life activity' under the 
statute.'' 2008 Senate Managers' Statement at 8. The list is 
intended to be merely illustrative. 2008 House Committee on Educ. 
and Labor Report at 11. For example, EEOC has previously taken the 
position that major life activities also include sitting, reaching, 
and interacting with others, and the regulations include those major 
life activities. Similarly, special sense organs, skin, 
genitourinary, cardiovascular, hemic, lymphatic, and musculoskeletal 
functions are major bodily functions not included in the statutory 
list of examples but included in section 1630.2(i)(2) to provide 
further illustrations. Some of these additional examples reflect 
examples of bodily systems already included in the definition of 
physical impairment in section 1630.2(h), and some are from the U.S. 
Department of Labor's nondiscrimination and equal employment 
opportunity regulations implementing section 188 of the Workforce 
Investment Act of 1998. The Commission has added these examples to 
further illustrate the non-exhaustive list of major life activities, 
including major bodily functions, and to emphasize that the concept 
of major life activities is to be interpreted broadly consistent 
with the Amendments Act. The Commission expects that courts will 
have occasion to recognize other examples as presented in a given 
case.
    The link between particular impairments and various major bodily 
functions should not be difficult to identify. For example, cancer 
affects an individual's major bodily function of ``normal cell 
growth''; diabetes affects the major bodily function of insulin 
production, a function of the endocrine system; and the Human 
Immunodeficiency Virus (HIV) affects functioning of the immune 
system. Cf. Heiko v. Columbo Savings Bank, F.S.B., 434 F.3d 249 (4th 
Cir. 2005) (in case brought by individual with polycystic kidney 
disease requiring dialysis treatment, court held that eliminating 
waste is a major life activity). Likewise, sickle cell disease 
affects the functions of the hemic system, lymphedema affects 
lymphatic functions, and rheumatoid arthritis affects 
musculoskeletal functions.
    The list of examples in section 1630.2(i) of some impairments 
and some of the major bodily functions they affect is intended to 
assist in understanding possible links between some impairments and 
some of the major life activities they may implicate. Section 
1630.2(j) also gives examples of impairments and major life 
activities they affect, but the purpose of the examples in that 
section is to demonstrate how impairments may substantially limit 
major life activities. The impairments listed in both 1630.2(i) and 
(j) may affect other major life activities not specifically 
identified. Additionally, the fact that a particular impairment is 
not offered as an example creates no negative implication concerning 
whether that impairment is or may be a disability.

 Section 1630.2(j) Substantially Limits

In General

    The Commission has revised its original standard for determining 
whether an impairment substantially limits a major life activity. 
Congress stated in the ADA Amendments Act of 2008 that the 
definition of disability ``shall be construed in favor of broad 
coverage,'' and that ``the term `substantially limits' shall be 
interpreted consistently with the findings and purposes of the ADA 
Amendments Act of 2008.'' 42 U.S.C. 12101(4), as amended. One such 
stated purpose in the Amendments Act is that ``the primary object of 
attention in cases brought under the ADA should be whether entities 
covered under the ADA have complied with their obligations, and to 
convey that the question of whether an individual's impairment is a 
disability under the ADA should not demand an extensive analysis.'' 
Section 2(b)(5) (``Findings and Purposes'').
    In keeping with this instruction, the Commission concludes that 
its prior formulation may suggest a more extensive analysis than 
Congress intended. The revised regulations therefore provide that an 
impairment is a disability if it substantially limits the ability of 
an individual to perform a major life activity as compared to most 
people in the general population, deletes the language to which 
Congress objected, and provides numerous practical examples to 
reflect Congressional intent and to illustrate some of the ways in 
which impairments may substantially limit a major life activity. The 
Commission believes that this provides a useful framework in which 
to analyze whether an impairment satisfies the definition of 
disability. Further, this framework better reflects Congress's 
expressed intent in the ADA Amendments Act that the definition of 
the term ``disability'' shall be construed broadly, and is 
consistent with statements in the Amendments Act's legislative 
history. See 2008 Senate Managers' Statement at 7 (stating that 
```substantially limits' as construed consistently with the findings 
and purposes of this legislation establishes an appropriate 
functionality test of determining whether an individual has a 
disability'' and that ``using the correct standard--one that is 
lower than the strict or demanding standard created by the Supreme 
Court in Toyota [Motor Mfg., Ky v. Williams, 534 U.S. 134 (2002)]--
will make the disability determination an appropriate threshold 
issue but not an onerous burden for those seeking accommodations or 
modifications''). Although the Senate Managers' Statement, citing 
the original ADA legislative history, also made reference to the 
terms ``condition, manner, or duration'' under which a major life 
activity is performed, the Commission has deleted that specific 
language from the expression of the standard itself to effectuate 
Congress's clear instruction in the Amendments Act 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. 2008 Senate Managers' Statement at 6. 
Moreover, the Commission notes that the U.S. Department of Justice 
has never included the terms ``condition, manner, or duration'' in 
its regulations promulgated under titles II and III of the ADA. See 
29 CFR part 35 (title II regulation) and 28 CFR part 36 (title III 
regulation).
    Not all impairments affect an individual in a major life 
activity such that they are substantially limiting. An individual 
with a disability is someone who due to an impairment is 
substantially limited in performing a major life activity as 
compared to most people in the general population. An impairment 
need not prevent, or significantly or severely restrict, the 
individual from performing a major life activity to be considered a 
disability. See 2008 Senate Managers' Statement at 6-7 & n.14; 2008 
House Committee on Educ. and Labor Report at 9-10 (``While the 
limitation imposed by an impairment must be important, it need not 
rise to the level of severely restricting or significantly 
restricting the ability to perform a major life activity to qualify 
as a disability.'') The level of limitation required is 
``substantial'' as compared to most people in the general 
population, which does not require a significant or severe 
restriction, yet must be more than a temporary, non-chronic 
impairment of short duration with little or no residual effects 
(e.g., the common cold or flu). Multiple impairments that combine to 
substantially limit one or more of an individual's major life 
activities also constitute a disability.
    The term ``average person in the general population,'' as the 
basis for determining whether an individual's impairment 
substantially limits a major life activity, has been changed to 
``most people in the general population.'' This revision is not a 
substantive change in the concept, but rather is intended to conform 
the language to the simpler and more straightforward terminology 
used in the legislative history to the 2008 Amendments Act, and to 
emphasize that the comparison between the individual and ``most 
people'' should be based on a common-sense approach that does not 
require an exacting or statistical analysis. The comparison to the 
general population continues to mean a comparison to other people in 
the general population, not a comparison to those similarly 
situated. For example, the ability of an individual with an 
amputated limb to perform a major life activity is compared to other 
people in the general population, not to other amputees. However, 
this does not mean that disability cannot be shown where an 
impairment is diagnosed, or its limitations evidenced, by reference 
to intra-individual differences (i.e., a disparity between an 
individual's aptitude and actual versus expected achievement), or in 
comparison to a particular class of people rather than how the 
impairment manifests itself in reference to the general population. 
For example, an individual with dyslexia may be substantially 
limited in reading and/or learning as evidenced by information about 
how the impairment affected his learning as compared to what would 
otherwise be expected of the individual or others of a certain age, 
school grade, level of education, or aptitude.
    The regulations include a clear statement that the definition of 
an impairment as

[[Page 48447]]

``transitory,'' that is ``lasting or expected to last for six months 
or less,'' that appears only in the ``regarded as'' definition of 
``disability'' as an exception to coverage, does not establish a 
requirement that an impairment last for more than six months in 
order to be considered substantially limiting under the ``actual'' 
or ``record of'' parts of the definition of disability. Impairments 
causing limitations that last, or are expected to last, for six or 
fewer months may still be substantially limiting.

Mitigating Measures

    The ameliorative effects of mitigating measures shall not be 
considered in determining whether an impairment substantially limits 
a major life activity, with the exception of ordinary eyeglasses or 
contact lenses (defined as lenses ``that are intended to fully 
correct visual acuity or eliminate refractive error''). ``The ADA 
Amendments Act provides a non-comprehensive list of the types of 
mitigating measures that are not to be considered.'' 2008 Senate 
Managers' Statement at 9. The regulations include all of those 
mitigating measures listed in the ADA Amendments Act's illustrative 
list of mitigating measures, including reasonable accommodations (as 
applied under title I) or ``auxiliary aids or services'' (as defined 
by 42 U.S.C. Sec.  12103(1) and applied under titles II and III). 
Additionally, consistent with a statement in the 2008 House 
Education and Labor Report at 15, the Commission has also included 
``surgical intervention'' as an example of a mitigating measure. In 
the Commission's view, a ``surgical intervention'' may constitute a 
mitigating measure, except when it permanently eliminates an 
impairment. The regulations also make clear that even an individual 
who, because of the use of medication or another mitigating measure, 
has experienced no limitations, or only minor limitations, related 
to the impairment may still be an individual with a disability, 
where there is evidence that in the absence of an effective 
mitigating measure the individual's impairment would be 
substantially limiting.

Impairments That Are Episodic or in Remission

    An impairment that is episodic or in remission is a disability 
if it would substantially limit a major life activity when active. 
Examples of impairments that may be episodic include, but are not 
limited to, epilepsy, multiple sclerosis, hypertension, diabetes, 
asthma, major depression, bipolar disorder, and schizophrenia. 
Individuals with these impairments can experience flare-ups that may 
substantially limit major life activities such as sleeping, 
breathing, caring for oneself, thinking, or concentrating. See 2008 
House Judiciary Committee Report at 19-20. Cancer is an example of 
an impairment that may be in remission.

Examples--Definition of Disability

    The ADA and this part, like the Rehabilitation Act of 1973, do 
not attempt an exhaustive ``laundry list'' of impairments that are 
``disabilities.'' Rather, disability is determined based on an 
individualized assessment. However, Sec.  1630.2(j)(5) of the 
regulations recognizes, and offers examples to illustrate, that 
characteristics associated with some types of impairments allow an 
individualized assessment to be conducted quickly and easily, and 
will consistently render those impairments disabilities. This result 
is the consequence of considering the combined effect of the 
statutory changes to the definition of disability contained in the 
ADA Amendments Act, including the lower standard for ``substantially 
limits'', the rule that major life activities include major bodily 
functions, the new rule for impairments that are episodic or in 
remission, and the principle that the ameliorative effects of 
mitigating measures (other than ordinary eyeglasses or contact 
lenses) must be disregarded in assessing whether an individual has a 
disability.
    The ADA Amendments Act's legislative history lends support to 
the view that impairments like those in section (j)(5) consistently 
will meet the definition of ``disability.'' The legislative history 
states that Congress modeled the ADA definition of disability on the 
definition contained in the Rehabilitation Act, and said it wished 
to return courts to the way they had construed that definition. 2008 
House Judiciary Committee Report at 6. Describing this goal, the 
Committee report states that courts had interpreted the 
Rehabilitation Act definition ``broadly to include persons with a 
wide range of physical and mental impairments such as epilepsy, 
diabetes, multiple sclerosis, and intellectual and developmental 
disabilities,'' even where a mitigating measure lessened their 
impact.'' Id.
    Section 1630.2(j)(6), on the other hand, offers examples of 
impairments that may be disabling for some individuals but not for 
others, depending on the stage of the impairment, the presence of 
other impairments that combine to make the impairment disabling, or 
any number of other factors. The types of impairment described in 
section (j)(6) will require somewhat more analysis than those in 
section (j)(5) in order to determine whether they substantially 
limit an individual's major life activities, although the Commission 
notes that the level of analysis required for these types of 
impairments still should be less than that required prior to the ADA 
Amendments Act. The examples do not set minimum requirements for 
establishing substantial limitations. The regulations also make 
clear that no negative implication should be drawn from the fact 
that a particular impairment does not appear on the lists of 
examples in Sec. Sec.  1630.2(j)(5) and (6). The standards for 
determining whether an impairment has been shown to be a disability 
are intended to be construed in favor of broad coverage of 
individuals, and should not demand an extensive analysis.
    It is important to remember that the limitation on the 
performance of a major life activity must be the result of a 
condition that is an impairment. As noted earlier, advanced age by 
itself, physical or personality characteristics, and environmental, 
cultural, and economic disadvantages are not impairments. 
Consequently, even if such factors substantially limit an 
individual's ability to perform a major life activity, this 
limitation will not constitute a disability. Thus, if someone could 
sleep only three hours per night because he had a newborn child 
living in his home, or because he lived along a noisy street, his 
limitation would not constitute a disability. An individual who is 
unable to read because he or she was never taught to read would not 
be an individual with a disability because lack of education is not 
an impairment. However, an individual who is substantially limited 
in reading because of dyslexia would be an individual with a 
disability because dyslexia, a learning disability, is an 
impairment.

Substantially Limited in Working

    In most instances, an individual with a disability will be able 
to establish coverage by showing that a major life activity other 
than working is substantially limited, therefore generally making it 
unnecessary to consider whether the individual is substantially 
limited in working. An individual need not demonstrate that he is 
substantially limited in working if he can demonstrate a substantial 
limitation in another major life activity.
    However, working may be the only major life activity at issue in 
some cases, for example where an impairment limits only the ability 
to satisfy certain job-related requirements of the position the 
individual was performing or for which the individual is applying. 
Some of these requirements may involve performance of major life 
activities in ways that are characteristic of the workplace, such as 
requirements to stand, sit, bend, lift, or perform manual tasks 
frequently, for a prolonged period of time, or repetitively.
    Consistent with Congress's exhortation in the Amendments Act to 
favor broad coverage and disfavor extensive analysis (Section 
2(b)(5) (``Findings and Purposes'')), the Commission has adopted a 
more straightforward articulation of the standard for substantial 
limitation in the major life activity of working. The regulations 
provide that an individual who, because of an impairment, is 
substantially limited in performing a type of work will be 
considered substantially limited in working. The terms ``class of 
jobs'' and ``broad range of jobs in various classes'' and specific 
criteria for applying those terms have been eliminated, and replaced 
with ``type of work.'' ``Type of work'' is more straightforward and 
easier to understand. Many of the examples of types of work, and 
many of the examples of job-related requirements characteristic of a 
type of work, would in the Commission's view make up either a class 
or broad range of jobs under the prior standard.
    A type of work includes the job the individual has been 
performing or for which he is applying, and jobs that have 
qualifications or job-related requirements which the individual 
would be substantially limited in performing as a result of the 
impairment. A type of work may be identified by the nature of the 
work as to which the individual is substantially limited when 
compared to most people having similar training, skills, and 
abilities, for instance, commercial truck driving (i.e., driving 
those types of trucks specifically regulated by the U.S. Department 
of

[[Page 48448]]

Transportation as commercial motor vehicles), assembly line jobs, 
food service jobs, clerical jobs, and law enforcement jobs. A type 
of work may also be identified by reference to job-related 
requirements that an individual is substantially limited in meeting 
because of an impairment, as compared to most people performing 
those jobs. The regulations provide examples of job-related 
requirements that may be characteristic of a type of work, such as 
repetitive bending, reaching, or manual tasks; repetitive or heavy 
lifting; prolonged sitting or standing; extensive walking; the 
ability to work under certain conditions (such as in workplaces 
characterized by high temperatures, high noise levels, or high 
stress); or the ability to work rotating, irregular, or excessively 
long shifts.
    Consistent with Congress's clearly expressed intent in the ADA 
Amendments Act that the focus of an ADA case should be on whether 
discrimination occurred, not on whether an individual meets the 
definition of ``disability'' (Section 2(b)(5) (``Findings and 
Purposes'')), the statistical analysis previously required by some 
courts will not be needed in order to establish that an individual 
is substantially limited in working. See, e.g., Duncan v. WMATA, 240 
F.3d 1110 (DC Cir. 2001); Taylor v. Federal Express, 429 F.3d 461 
(4th Cir. 2005). For this same reason, the specific factors in the 
prior regulation that guided determination of whether the limitation 
in working was ``substantial'' have been eliminated, including the 
geographical area to which the individual has reasonable access, the 
job from which the individual has been disqualified and the number 
and types of jobs using (and the number and type not using) similar 
training, knowledge, skills, or abilities within that geographical 
area from which the individual is also disqualified because of the 
impairment. Rather, using the ``type of work'' standard, evidence 
from the individual regarding his educational and vocational 
background and the limitations resulting from his impairment may be 
sufficient for the court to conclude from the nature of the jobs 
implicated that he is substantially limited in performing a type of 
work. Expert testimony concerning the types of jobs in which the 
individual is substantially limited will generally not be needed.
    The regulations also make clear that an individual's ability to 
obtain similar employment with another employer is not dispositive 
of whether an individual is substantially limited in working. 
Similarly, someone who, due to an impairment, is substantially 
limited in the ability to perform a type of work will be 
substantially limited in working even if the individual possesses 
skills that would qualify him or her for another type of work.
    The conclusion that an individual is substantially limited in 
working is consistent with the conclusion that the individual is 
qualified pursuant to section 1630.2(m) for the employment position 
the individual holds or desires. First, disability is determined 
without reference to accommodation, which is a mitigating measure, 
whereas whether an individual is qualified has always been, and is 
still, determined with the benefit of any accommodation to which the 
individual is legally entitled. Moreover, in cases where an employee 
claims denial of reasonable accommodation based on an employer's 
failure to offer reassignment to a vacant position as the 
accommodation of last resort prior to termination, an individual who 
is no longer able to perform his current position and is 
substantially limited in performing that type of work may 
nevertheless be qualified for the vacant position(s) to which he 
could have been reassigned as an accommodation.
    Finally, not every limitation on the ability to perform a job 
that results from an impairment will constitute a substantial 
limitation in working. This is the case, for example, where the 
limitation results from an impairment that is temporary, non-
chronic, and short-term.

Impairments That Are Usually Not Disabilities

    Certain types of impairments usually will not constitute 
disabilities. For example, temporary non-chronic impairments of 
short duration that result in little or no residual effects will 
usually not meet the definition of disability. Such impairments may 
include, but are not limited to, broken limbs that heal normally, 
sprained joints, appendicitis, and seasonal or common influenza. 
Moreover, episodic conditions that impose only minor limitations are 
not disabilities. These conditions may include seasonal allergies 
that do not substantially limit a person's major life activities 
even when active. The fact that an impairment is of long duration, 
chronic, or even permanent, does not necessarily establish that it 
is substantially limiting.

Section 1630.2(k) Record of a Substantially Limiting Impairment

    The second part of the definition of the term ``individual with 
a disability'' provides that an individual with a record of an 
impairment that substantially limits a major life activity is an 
individual with a disability. The intent of this provision, in part, 
is to ensure that people are not discriminated against because of a 
history of disability. For example, the ``record of'' provision 
would protect an individual who was previously treated for cancer 
but who is now deemed by a doctor to be free of cancer, from 
discrimination based on his or her prior medical history. This 
provision also ensures that individuals are not discriminated 
against because they have been misclassified as disabled. For 
example, individuals misclassified as having learning disabilities 
are protected from discrimination on the basis of that erroneous 
classification. Senate Report at 23; House Labor Report at 52-53; 
House Judiciary Report at 29.
    This part of the definition is satisfied where evidence 
establishes that the individual has or has had a substantially 
limiting impairment. The impairment indicated in the record must be 
an impairment that would substantially limit one or more of the 
individual's major life activities. There are many types of records 
that could potentially contain this information, including but not 
limited to, education, medical, or employment records.
    The Commission has deleted language from the interpretive 
guidance accompanying the title I regulations issued in 1991 which 
implied that evidence that an employer ``relied on'' a record of 
disability is necessary to establish coverage under this definition 
of ``disability.'' Only evidence that an individual has a past 
history of a substantially limiting impairment is necessary to 
establish a record of a disability. Whether the employer relied on 
the record of a disability when making an employment decision is 
relevant to the merits, i.e., whether the employer discriminated on 
the basis of disability.
    The fact that an individual has a record of being a disabled 
veteran, or of disability retirement, or is classified as disabled 
for other purposes does not guarantee that the individual will 
satisfy the definition of ``disability'' under part 1630. Other 
statutes, regulations and programs may have a definition of 
``disability'' that is not the same as the definition set forth in 
the ADA and contained in part 1630. Accordingly, in order for an 
individual who has been classified in a record as ``disabled'' for 
some other purpose to be considered an individual with a disability 
for purposes of part 1630, the impairment indicated in the record 
must be a physical or mental impairment that substantially limits 
one or more of the individual's major life activities. The term 
``substantially limits'' under the second prong of the definition of 
``disability'' is to be construed in accordance with the same 
principles applicable under the first prong. In other words, the 
term is to be construed broadly to the maximum extent permitted 
under the ADA and should not require extensive analysis.

Section 1630.2(l) Regarded as Substantially Limited in a Major Life 
Activity

    The third way that an individual may be an ``individual with a 
disability'' under the definition is if the individual is ``regarded 
as'' an individual with a disability. As newly defined under the 
statute, ``regarded as'' coverage can be established whether or not 
the employer was motivated by myths, fears, or stereotypes. Under 
the ADA as amended, an individual is regarded as disabled when a 
covered entity takes some action prohibited by the ADA (e.g., 
refusal to hire, termination, or demotion) because of an actual or 
perceived impairment. Proof that the individual was subjected to a 
prohibited employment action, e.g., excluded from one job, because 
of an impairment (other than an impairment that is transitory and 
minor, as discussed below) is sufficient to establish coverage under 
the ``regarded as'' definition. 2008 House Committee on Educ. and 
Labor Report at 12-14; 2008 Senate Managers' Statement at 9-10. 
Evidence that the employer believed the individual was substantially 
limited in any major life activity is not required. For example, if 
an employer refused to hire an applicant because of skin graft 
scars, the employer has regarded the applicant as an individual with 
a disability. Similarly, if an employer

[[Page 48449]]

terminates an employee because he has cancer, the employer has 
regarded the employee as an individual with a disability. It is not 
necessary, as it was prior to enactment of the ADA Amendments Act, 
for an individual to demonstrate that a covered entity perceived him 
as substantially limited in the ability to perform a major life 
activity.
    The regulations explain that an employer that takes a prohibited 
action against an individual because of symptoms related to an 
impairment or because of mitigating measures, such as medication 
that an individual uses because of an impairment, may also regard 
the individual as disabled, even if the employer is unaware of the 
underlying impairment. The regulations offer two examples to 
illustrate this point--one involving an employer who refuses to hire 
someone with a facial tic associated with Tourette's Syndrome and 
the second describing an employer that refuses to hire someone for a 
driving job because he takes anti-seizure medication.
    Nevertheless, as with establishing disability under any of the 
three prongs of the definition, the individual must still establish 
the other elements of a claim and the employer may raise any 
available defenses. For example, an employer who withdraws a 
conditional offer of employment because the post-offer pre-
employment medical examination reveals that the applicant takes 
anti-seizure medication has regarded the applicant as an individual 
with a disability. However, the applicant would still need to 
establish that he is otherwise qualified for the position, and the 
employer could still raise any applicable defenses under Sec.  
1630.15, for example that the applicant posed a direct threat to 
health or safety based on the best available objective medical 
evidence and an individualized assessment of the risk, if any, posed 
by the particular applicant, or that excluding individuals who take 
anti-seizure medication from the position at issue is required by 
another federal law. Similarly, if a claim is brought alleging that 
an employer's qualification standard screened out or tended to 
screen out an individual on the basis of disability, the applicant 
would still need to establish that he is otherwise qualified for the 
position, and the employer could still show that the qualification 
standard at issue is job-related and consistent with business 
necessity, that a safety-based exclusion satisfied the direct threat 
standard, or any other applicable defenses under Sec.  1630.15.
    As prescribed in the ADA Amendments Act, the regulations provide 
a restriction on coverage under the ``regarded as'' prong where the 
impairment on which a prohibited action is based is both transitory 
(having an actual or expected duration of six months or less) and 
minor. The relevant inquiry is whether the impairment on which the 
employer's action was based is transitory and minor, not whether the 
individual actually has or had that impairment. The regulations 
provide several examples to illustrate the exception. An additional 
example would include a situation in which an employer terminated an 
employee with a transitory and minor wound on his hand, believing 
the wound to be symptomatic of HIV infection. The employer will have 
``regarded'' the employee as an individual with a disability, 
because it took a prohibited employment action based on a perceived 
impairment (HIV infection) that is not transitory and minor. Under 
the Amendments Act, an individual need not establish that an 
employer was motivated by myths, fears, and stereotypes about an 
actual or perceived impairment to establish coverage under the 
``regarded as'' prong. As long as the employer bases an employment 
action on an actual or perceived impairment that was not transitory 
and minor, the employer regards the individual as disabled, whether 
or not myths, fears, or stereotypes about disability motivated the 
employer's decision. For this reason, the Commission has deleted 
certain language about myths, fears, and stereotypes from the 
original version of this section of the appendix that might 
otherwise be misconstrued. Of course, evidence that an employer 
harbored myths, fears, and stereotypes related to an impairment may 
be relevant in establishing that the employer took a prohibited 
action based on the impairment.
* * * * *

Section 1630.2(o) Reasonable Accommodation

    An individual with a disability is considered ``qualified'' if 
the individual can perform the essential functions of the position 
held or desired with or without reasonable accommodation. A covered 
entity is required, absent undue hardship, to provide reasonable 
accommodation to a qualified individual with a substantially 
limiting impairment or a ``record of'' such an impairment. However, 
a covered entity is not required to provide an accommodation to an 
individual who meets the definition of disability solely under the 
``regarded as'' prong.
* * * * *

Section 1630.4 Discrimination Prohibited

    Subparagraph (a) of this provision prohibits discrimination 
against a qualified individual with a disability in all aspects of 
the employment relationship. The range of employment decisions 
covered by this nondiscrimination mandate is to be construed in a 
manner consistent with the regulations implementing section 504 of 
the Rehabilitation Act of 1973.
    Subparagraph (b) makes it clear that the language ``on the basis 
of disability'' is not intended to create a cause of action for an 
individual without a disability who claims that someone with a 
disability was treated more favorably (disparate treatment), or was 
provided a reasonable accommodation that an individual without a 
disability was not provided. Additionally, the ADA and this part do 
not affect laws that may require the affirmative recruitment or 
hiring of individuals with disabilities, or any voluntary 
affirmative action employers may undertake on behalf of individuals 
with disabilities. At the same time, however, part 1630 is not 
intended to limit the ability of covered entities to choose and 
maintain a qualified workforce. Employers can continue to use job-
related criteria to select qualified employees, and can continue to 
hire employees who can perform the essential functions of the job.

Section 1630.5 Limiting, Segregating and Classifying

    This provision and the several provisions that follow describe 
various specific forms of discrimination that are included within 
the general prohibition of Sec.  1630.4. The capabilities of 
qualified individuals must be determined on an individualized, case 
by case basis. Covered entities are also prohibited from segregating 
qualified employees into separate work areas or into separate lines 
of advancement on the basis of their disabilities.
* * * * *

Section 1630.9 Not Making Reasonable Accommodation

* * * * *

Section 1630.9(e)

    The purpose of this provision is to incorporate the 
clarification made in the ADA Amendments Act of 2008 that an 
individual is not entitled to reasonable accommodation under the ADA 
if the individual is only covered under the ``regarded as'' prong of 
the definition of ``individual with a disability.'' However, if the 
individual is covered under both the ``regarded as'' prong and one 
or both of the other two prongs of the definition of ``individual 
with a disability,'' the individual is entitled to reasonable 
accommodation assuming the other requirements of the ADA are met.

Section 1630.10 Qualification Standards, Tests, and Other Selection 
Criteria

Section 1630.10(a)--In General

    The purpose of this provision is to ensure that individuals with 
disabilities are not excluded from job opportunities unless they are 
actually unable to do the job. It is to ensure that there is a fit 
between job criteria and an applicant's (or employee's) actual 
ability to do the job. Accordingly, job criteria that even 
unintentionally screen out, or tend to screen out, an individual 
with a disability or a class of individuals with disabilities 
because of their disability may not be used unless the employer 
demonstrates that those criteria, as used by the employer, are job-
related to the position to which they are being applied and are 
consistent with business necessity. The concept of ``business 
necessity'' has the same meaning as the concept of ``business 
necessity'' under section 504 of the Rehabilitation Act of 1973.
    Selection criteria that exclude, or tend to exclude, an 
individual with a disability or a class of individuals with 
disabilities because of their disability but do not concern an 
essential function of the job would not be consistent with business 
necessity.
    The use of selection criteria that are related to an essential 
function of the job may be consistent with business necessity. 
However, selection criteria that are related to an essential 
function of the job may not be used to exclude an individual with a 
disability if that individual could satisfy the criteria with the 
provision of a reasonable

[[Page 48450]]

accommodation. Experience under a similar provision of the 
regulations implementing section 504 of the Rehabilitation Act 
indicates that challenges to selection criteria are, in fact, most 
often resolved by reasonable accommodation. It is therefore 
anticipated that challenges to selection criteria brought under this 
part will generally be resolved in a like manner.
    This provision is applicable to all types of selection criteria, 
including safety requirements, vision or hearing requirements, 
walking requirements, lifting requirements, and employment tests. 
See Senate Report at 37-39; House Labor Report at 70-72; House 
Judiciary Report at 42. As previously noted, however, it is not the 
intent of this part to second guess an employer's business judgment 
with regard to production standards. (See section 1630.2(n) 
Essential Functions). Consequently, production standards will 
generally not be subject to a challenge under this provision.
    The Uniform Guidelines on Employee Selection Procedures (UGESP) 
29 CFR part 1607 do not apply to the Rehabilitation Act and are 
similarly inapplicable to this part.

Section 1630.10(b)--Qualification Standards and Tests Related to 
Uncorrected Vision

    This provision allows challenges to qualification standards 
based on uncorrected vision, even where the person excluded by a 
standard has fully corrected vision with ordinary eyeglasses or 
contact lenses. Because the statute does not limit the provision on 
uncorrected vision standards to individuals with disabilities, a 
person does not need to be an individual with a disability in order 
to challenge such qualification standards. Nevertheless, the 
Commission believes that such individuals will usually be covered 
under the ``regarded as'' prong of the definition of disability. 
Someone who wears eyeglasses or contact lenses to correct vision 
will still have an impairment, and a qualification standard that 
screens them out on the basis of the impairment by requiring a 
certain level of uncorrected vision to perform a job will amount to 
an action prohibited by the ADA based on an impairment. (See Sec.  
1630.2(l); Appendix to Sec.  1630.2(l)).
    A covered entity may still defend a qualification standard 
requiring a certain level of uncorrected vision by showing that it 
is job-related and consistent with business necessity. For example, 
an applicant or employee with uncorrected vision of 20/100 who wears 
glasses that fully correct his vision may challenge a police 
department's qualification standard that requires all officers to 
have uncorrected vision of no less than 20/40 in one eye and 20/100 
in the other, and visual acuity of 20/20 in both eyes with 
correction. The department would then have to establish that the 
standard is job-related and consistent with business necessity.
* * * * *
[FR Doc. E9-22840 Filed 9-22-09; 8:45 am]
BILLING CODE 6570-01-P