Regulations To Implement the Equal Employment Provisions of the Americans With Disabilities Act, as Amended, 16978-17017 [2011-6056]

Agencies

• Equal Employment Opportunity Commission

[Federal Register Volume 76, Number 58 (Friday, March 25, 2011)]
[Rules and Regulations]
[Pages 16978-17017]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-6056]



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Vol. 76

Friday,

No. 58

March 25, 2011

Part III





Equal Employment Opportunity Commission





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29 CFR Part 1630



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

Federal Register / Vol. 76 , No. 58 / Friday, March 25, 2011 / Rules 
and Regulations

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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: Final Rule.

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SUMMARY: The Equal Employment Opportunity Commission (the Commission or 
the EEOC) issues its final revised 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, the EEOC is expressly granted the authority 
to amend these regulations, and is expected to do so.

DATES: Effective Date: These final regulations will become effective on 
May 24, 2011.

FOR FURTHER INFORMATION CONTACT: Christopher J. 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) 663-4494 (TTY) or to the 
Publications Information Center at 1-800-669-3362.

SUPPLEMENTARY INFORMATION:

Introduction

    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 Amendments Act, 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 the 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 (2008 Senate 
Statement of Managers); 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) (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) (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 prior 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 (the appendix).
    Consistent with the provisions of the Amendments Act and Congress's 
expressed expectation therein, the Commission drafted a Notice of 
Proposed Rulemaking (NPRM) that was circulated to the Office of 
Management and Budget for review (pursuant to Executive Order 12866) 
and to federal executive branch agencies for comment (pursuant to 
Executive Order 12067). The NPRM was subsequently published in the 
Federal Register on September 23, 2009 (74 FR 48431), for a sixty-day 
public comment period. The NPRM sought comment on the proposed 
regulations, which:

--Provided that the definition of ``disability'' shall be interpreted 
broadly;
--Revised 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., Inc. v. 
Williams, 534 U.S. 184 (2002) (2008 Senate Statement of Managers at 6);
--Expanded the definition of ``major life activities'' through two non-
exhaustive lists:
--The first list included 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 included 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 were 
added by the Commission as further illustrative examples;
--Provided that mitigating measures other than ``ordinary eyeglasses or 
contact lenses'' shall not be considered in assessing whether an 
individual has a ``disability'';
--Provided that an impairment that is episodic or in remission is a 
disability if it would substantially limit a major life activity when 
active;
--Provided that the definition of ``regarded as'' be changed so that it 
would no longer require a showing that an employer perceived the 
individual to be substantially limited in a major life activity, and so 
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'';
--Provided that actions based on an impairment include actions based on

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symptoms of, or mitigating measures used for, an impairment;
--Provided that individuals covered only under the ``regarded as'' 
prong are not entitled to reasonable accommodation; and,
--Provided 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 NPRM proposed revisions to the 
following sections of 29 CFR part 1630 and the accompanying provisions 
of the appendix: Sec.  1630.1 (added (c)(3) and (4)); Sec.  
1630.2(g)(3) (added cross-reference to 1630.2(l)); Sec.  1630.2 (h) 
(replaced the term ``mental retardation'' with the term ``intellectual 
disability''); Sec.  1630.2(i) (revised definition of ``major life 
activities'' and provided examples); Sec.  1630.2(j) (revised 
definition of ``substantially limits'' and provided examples); Sec.  
1630.2(k) (provided examples of ``record of'' a disability); Sec.  
1630.2(l) (revised definition of ``regarded as'' having a disability 
and provided examples); Sec.  1630.2(m) (revised terminology); Sec.  
1630.2(o) (added (o)(4) stating that reasonable accommodations are not 
available to individuals who are only ``regarded as'' individuals with 
disabilities); Sec.  1630.4 (renumbered section and added Sec.  
1630.4(b) regarding ``claims of no disability''); Sec.  1630.9 (revised 
terminology in Sec.  1630.9(c) and added Sec.  1630.9(e) stating that 
an individual covered only under the ``regarded as'' definition of 
disability is not entitled to reasonable accommodation); Sec.  1630.10 
(revised to add provision on qualification standards and tests related 
to uncorrected vision); and Sec.  1630.16(a) (revised terminology).
    These regulatory revisions were explained in the proposed revised 
part 1630 appendix containing the interpretive guidance. The Commission 
originally issued the interpretive guidance concurrent with 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 will be issued and 
published in the Code of Federal Regulations with the final 
regulations. It will continue to represent the Commission's 
interpretation of the issues discussed in the regulations, and the 
Commission will be guided by it when resolving charges of employment 
discrimination under the ADA.

Summary and Response to Comments

    The Commission received well over 600 public comments on the NPRM, 
including, among others: 5 comments from federal agencies that had not 
previously commented during the inter-agency review process under E.O. 
12067 or the Office of Management and Budget review process under E.O. 
12866; 61 comments from civil rights groups, disability rights groups, 
health care provider groups, and attorneys, attorney associations, and 
law firms on their behalf; 48 comments from employer associations and 
industry groups, as well as attorneys, attorney associations, and law 
firms on their behalf; 4 comments from state governments, agencies, or 
commissions, including one from a state legislator; and 536 comments 
from individuals, including individuals with disabilities and their 
family members or other advocates. Each of these comments was reviewed 
and considered in the preparation of this final rule. The Commission 
exercised its discretion to consider untimely comments that were 
received by December 15, 2009, three weeks following the close of the 
comment period, and these tallies include 8 such comments that were 
received. The comments from individuals included 454 comments that 
contained similar or identical content filed by or on behalf of 
individuals with learning disabilities and/or attention-deficit/
hyperactivity disorder (AD/HD), although many of these comments also 
included an additional discussion of individual experiences.
    Consistent with EO 13563, this rule was developed through a process 
that involved public participation. The proposed regulations, including 
the preliminary regulatory impact and regulatory flexibility analyses, 
were available on the Internet for a 60-day public-comment period, and 
during that time the Commission also held a series of forums in order 
to promote the open exchange of information. Specifically, the EEOC and 
the U.S. Department of Justice Civil Rights Division also held four 
``Town Hall Listening Sessions'' in Oakland, California on October 26, 
2009; in Philadelphia, Pennsylvania on October 30, 2009, in Chicago, 
Illinois on November 17, 2009, and in New Orleans, Louisiana on 
November 20, 2009. During these sessions, Commissioners heard in-person 
and telephonic comments on the NPRM from members of the public on both 
a pre-registration and walk-in basis. More than 60 individuals and 
representatives of the business/employer community and the disability 
advocacy community from across the country offered comments at these 
four sessions, a number of whom additionally submitted written 
comments.
    All of the comments on the NPRM received electronically or in hard 
copy during the public comment period, including comments from the Town 
Hall Listening Sessions, may be reviewed at the United States 
Government's electronic docket system, https://www.regulations.gov, 
under docket number EEOC-2009-0012. In most instances, this preamble 
addresses the comments by issue rather than by referring to specific 
commenters or comments by name.
    In general, informed by questions raised in the public comments, 
the Commission throughout the final regulations has refined language 
used in the NPRM to clarify its intended meaning, and has also 
streamlined the organization of the regulation to make it simpler to 
understand. As part of these revisions, many examples were moved to the 
appendix from the regulations, and NPRM language repeatedly stating 
that no negative implications should be drawn from the citation to 
particular impairments in the regulations and appendix was deleted as 
superfluous, given that the language used makes clear that impairments 
are referenced merely as examples. More significant or specific 
substantive revisions are reviewed below, by provision.
    The Commission declines to make changes requested by some 
commenters to portions of the regulations and the appendix that we 
consider to be unaffected by the ADA Amendments Act of 2008, such as to 
29 CFR 630.3 (exceptions to definitions), 29 CFR 1630.2(r) (concerning 
the ``direct threat'' defense), 29 CFR 1630.8 (association with an 
individual with a disability), and portions of the appendix that 
discuss the obligations of employers and individuals during the 
interactive process following a request for reasonable accommodation. 
The Commission has also declined to make revisions requested by 
commenters relating to health insurance, disability and other benefit 
programs, and the interaction of the ADA, the Family and Medical Leave 
Act (FMLA), and workers' compensation laws. The Commission believes the 
proposed regulatory language was clear with respect to any application 
it may have to these issues.

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Terminology

    The Commission has made changes to some of the terminology used in 
the final regulations and the appendix. For example, an organization 
that represents individuals who have HIV and AIDS asked that the 
regulations refer to ``HIV infection,'' instead of ``HIV and AIDS.'' An 
organization representing persons with epilepsy sought deletion or 
clarification of references to ``seizure disorders'' and ``seizure 
disorders other than epilepsy,'' noting that ``people who have chronic 
seizures have epilepsy, unless the seizure is due to [another 
underlying impairment].'' This revision was not necessary since 
revisions to the regulations resulted in deletion of NPRM Sec.  
1630.2(j)(5)(iii) in which the reference to ``seizure disorder'' 
appeared. In addition, the Commission made further revisions to conform 
the regulations and appendix to the statutory deletion of the term 
``qualified individual with a disability'' throughout most of title I 
of the ADA. The Commission did not make all changes in terminology 
suggested by commenters, for example declining to substitute the term 
``challenges'' for the terms ``disability'' and ``impairment,'' because 
this would have been contrary to the well-established terminology that 
Congress deliberately used in the ADA Amendments Act.

Section 1630.2(g): Disability

    This section of the regulations includes the basic three-part 
definition of the term ``disability'' that was preserved but redefined 
in the ADA Amendments Act. For clarity, the Commission has referred to 
the first prong as ``actual disability,'' to distinguish it from the 
second prong (``record of'') and the third prong (``regarded as''). The 
term ``actual disability'' is used as short-hand terminology to refer 
to an impairment that substantially limits a major life activity within 
the meaning of the first prong of the definition of disability. The 
terminology selected is for ease of reference and is not intended to 
suggest that individuals with a disability under the first prong 
otherwise have any greater rights under the ADA than individuals whose 
impairments are covered under the ``record of'' or ``regarded as'' 
prongs, other than the restriction created by the Amendments Act that 
individuals covered only under the ``regarded as'' prong are not 
entitled to reasonable accommodation.
    Although an individual may be covered under one or more of these 
three prongs of the definition, it appeared from comments that the NPRM 
did not make explicit enough that the ``regarded as'' prong should be 
the primary means of establishing coverage in ADA cases that do not 
involve reasonable accommodation, and that consideration of coverage 
under the first and second prongs will generally not be necessary 
except in situations where an individual needs a reasonable 
accommodation. Accordingly, in the final regulations, Sec.  1630.2(g) 
and (j) and their accompanying interpretive guidance specifically state 
that cases in which an applicant or employee does not require 
reasonable accommodation can be evaluated solely under the ``regarded 
as'' prong of the definition of ``disability.''

 Section 1630.2(h): Impairment

    Some comments pointed out that the list of body systems in the 
definition of ``impairment'' in Sec.  1630.2(h) of the NPRM was not 
consistent with the description of ``major bodily functions'' in Sec.  
1630.2(i)(1)(ii) that was added due to the inclusion in the Amendments 
Act of ``major bodily functions'' as major life activities. In 
response, the Commission has added references to the immune system and 
the circulatory system to Sec.  1630.2(h), because both are mentioned 
in the definition of ``major bodily functions'' in Sec.  
1630.2(i)(1)(ii). Other apparent discrepancies between the definition 
of ``impairment'' and the list of ``major bodily functions'' can be 
accounted for by the fact that major bodily functions are sometimes 
defined in terms of the operation of an organ within a body system. For 
example, functions of the brain (identified in Sec.  1630.2(i)) are 
part of the neurological system and may affect other body systems as 
well. The bladder, which is part of the genitourinary system, is 
already referenced in Sec.  1630.2(h). In response to comments, the 
Commission has also made clear that the list of body systems in Sec.  
1630.2(h)(1) is non-exhaustive, just as the list of mental impairments 
in Sec.  1630.2(h)(2) has always made clear with respect to its 
examples. The Commission has also amended the final appendix to Sec.  
1630.2(h) to conform to these revisions.
    The Commission received several comments seeking explanation of 
whether pregnancy-related impairments may be disabilities. To respond 
to these inquiries, the final appendix states that although pregnancy 
itself is not an impairment, and therefore is not a disability, a 
pregnancy-related impairment that substantially limits a major life 
activity is a disability under the first prong of the definition. 
Alternatively, a pregnancy-related impairment may constitute a ``record 
of'' a substantially limiting impairment, or may be covered under the 
``regarded as'' prong if it is the basis for a prohibited employment 
action and is not ``transitory and minor.''

Section 1630.2(i): Major Life Activities

    A number of comments, mostly on behalf of individuals with 
disabilities, suggested that the Commission add more examples of major 
life activities, particularly to the first non-exhaustive list, 
including but not limited to typing, keyboarding, writing, driving, 
engaging in sexual relations, and applying fine motor coordination. 
Other suggestions ranged widely, including everything from squatting 
and getting around inside the home to activities such as farming, 
ranching, composting, operating water craft, and maintaining an 
independent septic tank.
    The Commission does not believe that it is necessary to decide 
whether each of the many other suggested examples is in fact a major 
life activity, but we emphasize again that the statutory and regulatory 
examples are non-exhaustive. We also note that some of the activities 
that commenters asked to be added may be part of listed major life 
activities, or may be unnecessary to establishing that someone is an 
individual with a disability in light of other changes to the 
definition of ``disability'' resulting from the Amendments Act.
    Some employer groups suggested that major life activities other 
than those specifically listed in the statute be deleted, claiming that 
the EEOC had exceeded its authority by including additional ones. 
Specific concerns were raised about the inclusion of ``interacting with 
others'' on behalf of employers who believed that recognizing this 
major life activity would limit the ability to discipline employees for 
misconduct.
    Congress expressly provided that the two lists of examples of major 
life activities are non-exhaustive, and the Commission is authorized to 
recognize additional examples of major life activities. The final 
regulations retain ``interacting with others'' as an example of a major 
life activity, consistent with the Commission's long-standing position 
in existing enforcement guidance.
    One disability rights group also asked the Commission to delete the 
long-standing definition of major life activities as those basic 
activities that most people in the general population ``can perform 
with little or no difficulty'' and substitute a lower standard. Upon 
consideration, we think that, while the ability of most people to 
perform the

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activity is relevant when evaluating whether an individual is 
substantially limited, it is not relevant to whether the activity in 
question is a major life activity. Consequently, the final rule, like 
the statute itself, simply provides examples of activities that qualify 
as ``major life activities'' because of their relative importance.
    Finally, some commenters asked that the final rule state explicitly 
that the standard from Toyota Motor Mfg., Ky., Inc. v. Williams, 534 
U.S. 184 (2002), for determining whether an activity qualifies as a 
major life activity--that it be of ``central importance to most 
people's daily lives''--no longer applies after the ADA Amendments Act. 
The Commission agrees and has added language to this effect in the 
final regulations.
    We have provided this clarification in the regulations, and, in the 
appendix, we explain what this means with respect to, for example, 
activities such as lifting and performing manual tasks. The final 
regulations also state that in determining other examples of major life 
activities, the term ``major'' shall not be interpreted strictly to 
create a demanding standard for disability, and provide that whether an 
activity is a ``major life activity'' is not determined by reference to 
whether it is of ``central importance to daily life.''

Section 1630.2(j): Substantially Limits

Overview
    Although much of Sec.  1630.2(j) of the final regulations is 
substantively the same as Sec.  1630.2(j) of the NPRM, the structure of 
the section is somewhat different. Many of the examples that were in 
the text of the proposed rule have been relocated to the appendix. 
Section 1630.2(j)(1) in the final regulations lists nine ``rules of 
construction'' that are based on the statute itself and are essentially 
consistent with the content of Sec. Sec.  1630.2(j)(1) through (4) of 
the NPRM. Section 1630.2(j)(2) in the final regulations makes clear 
that the question of whether an individual is substantially limited in 
a major life activity is not relevant to coverage under the ``regarded 
as'' prong. Section 1630.2(j)(3)(ii) in the final regulations notes 
that some impairments will, given their inherent nature, virtually 
always be found to impose a substantial limitation on a major life 
activity. Therefore, with respect to these types of impairments, the 
necessary individualized assessment should be particularly simple and 
straightforward. In addition, Sec.  1630.2(j)(3)(iii) includes examples 
of impairments that should easily be found to substantially limit a 
major life activity. These are the same impairments that were included 
as examples in Sec.  1630.2(j)(5) of the NPRM. In response to comments 
(discussed below), Sec.  1630.2(j)(4) discusses the concepts of 
``condition, manner, or duration'' that may be useful in evaluating 
whether an individual is substantially limited in a major life activity 
in some cases. Section 1630.2(j)(5) in the final regulations offers 
examples of mitigating measures, and Sec.  1630.2(j)(6) contains the 
definition of ``ordinary eyeglasses or contact lenses.'' The discussion 
of how to determine whether someone is substantially limited in working 
in those rare cases where this may be at issue now appears in the 
appendix rather than the regulations, and has been revised as explained 
below. Finally, NPRM Sec.  1630.2(j)(6), describing certain impairments 
that may or may not meet the definition of ``substantially limits,'' 
and NPRM Sec.  1630.2(j)(8), describing certain impairments that 
usually will not meet the definition of ``substantially limits,'' have 
been deleted in favor of an affirmative statement in both the final 
regulations and the appendix that not every impairment will constitute 
a disability within the meaning of Sec.  1630.2(j) (defining 
``substantially limits'').
Meaning of ``Substantially Limits''
    Many commenters asked that the Commission more affirmatively define 
``substantially limits.'' Suggestions for further definitions of 
``substantial'' included, among others, ``ample,'' ``considerable,'' 
``more than moderately restricts,'' ``discernable degree of 
difficulty,'' ``makes achievement of the activity difficult,'' and 
``causes a material difference from the ordinary processes by which 
most people in the general population perform the major life 
activity.'' The Commission has not added terms to quantify 
``substantially limits'' in the final regulations. We believe this is 
consistent with Congress's express rejection of such an approach in the 
statute, which instead simply indicates that ``substantially limits'' 
is a lower threshold than ``prevents'' or ``severely or significantly 
restricts,'' as prior Supreme Court decisions and the EEOC regulations 
had defined the term. The Commission ultimately concluded that a new 
definition would inexorably lead to greater focus and intensity of 
attention on the threshold issue of coverage than intended by Congress. 
Therefore, following Congress's approach, the final regulations provide 
greater clarity and guidance by providing nine rules of construction 
that must be applied in determining whether an impairment substantially 
limits (or substantially limited) a major life activity. These rules 
are based on the provisions in the Amendments Act, and will guide 
interpretation of the term ``substantially limits.''
Comparison to ``Most People''
    The regulations say that in determining whether an individual has a 
substantially limiting impairment, the individual's ability to perform 
a major life activity should be compared to that of ``most people in 
the general population.'' Both employer groups and organizations 
writing on behalf of individuals with disabilities said that the 
concept of ``intra-individual'' differences (disparities between an 
individual's aptitude and expected achievement versus the individual's 
actual achievement) that appears in the discussion of learning 
disabilities in the NPRM's appendix is inconsistent with the rule that 
comparison of an individual's limitations is always made by reference 
to most people. However, the Commission also received some comments 
from disability groups requesting that, in the assessment of whether an 
individual is substantially limited, the regulations allow for 
comparisons between an individual's experiences with and without an 
impairment, and comparisons between an individual and her peers--in 
addition to comparisons of the individual to ``most people.''
    The Commission agrees that the reference to ``intra-individual'' 
differences, without further explanation, may be misconstrued as at 
odds with the agency's view that comparisons are always made between an 
individual and most people. Therefore, the Commission has added 
language to the discussion of learning disabilities in the appendix, in 
Sec.  1630.2(j)(1)(v), clarifying that although learning disabilities 
may be diagnosed in terms of the difference between an individual's 
aptitude and actual versus expected achievement, a comparison to ``most 
people'' can nevertheless be made. Moreover, the appendix provides 
examples of ameliorative effects of mitigating measures that will be 
disregarded in making this comparison, and notes legislative history 
rejecting the assumption that an individual who has performed well 
academically cannot be substantially limited in activities such as 
learning, reading, writing, thinking, or speaking.

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Relevance of Duration of an Impairment's Limitations in Assessing 
``Substantially Limits''

    Many commenters expressed their view that the NPRM failed to 
clarify, or created confusion regarding, how long an impairment's 
limitation(s) must last in order for the impairment to be considered 
substantially limiting. Some thought the Commission was saying that 
impairments that are ``transitory and minor'' under the third prong can 
nevertheless be covered under the first or second prong of the 
definition of ``disability.'' A few comments suggested that the 
Commission adopt a minimum duration of six months for an impairment to 
be considered substantially limiting, but more commenters simply wanted 
the Commission to specify whether, and if so what, duration is 
necessary to establish a substantial limitation.
    In enacting the ADA Amendments Act, Congress statutorily defined 
``transitory'' for purposes of the ``transitory and minor'' exception 
to newly-defined ``regarded as'' coverage as ``an impairment with an 
actual or expected duration of 6 months or less,'' but did not include 
that limitation with respect to the first or second prong in the 
statute. 42 U.S.C. 12102(3)(B). Moreover, prior to the Amendments Act, 
it had been the Commission's long-standing position that if an 
impairment substantially limits, is expected to substantially limit, or 
previously substantially limited a major life activity for at least 
several months, it could be a disability under Sec.  1630.2(g)(1) or a 
record of a disability under Sec.  1630.2(g)(2). See, e.g., EEOC 
Compliance Manual Section 902, ``Definition of the Term Disability,'' 
Sec.  902(4)(d) (originally issued in 1995), https://www.eeoc.gov/policy/docs/902cm.html; EEOC Enforcement Guidance on the Americans with 
Disabilities Act and Psychiatric Disabilities (1997), https://www.eeoc.gov/policy/docs/psych.html. A six-month durational requirement 
would represent a more stringent standard than the EEOC had previously 
required, not the lower standard Congress sought to bring about through 
enactment of the ADA Amendments Act. Therefore, the Commission declines 
to provide for a six-month durational minimum for showing disability 
under the first prong or past history of a disability under the second 
prong.
    Additionally, the Commission has not in the final regulations 
specified any specific minimum duration that an impairment's effects 
must last in order to be deemed substantially limiting. This accurately 
reflects the intent of the ADA Amendments Act, as conveyed in the joint 
statement submitted by co-sponsors Hoyer and Sensenbrenner. That 
statement explains that the duration of an impairment is only one 
factor in determining whether the impairment substantially limits a 
major life activity, and impairments that last only a short period of 
time may be covered if sufficiently severe. See Joint Hoyer-
Sensenbrenner Statement on the Origins of the ADA Restoration Act of 
2008, H.R. 3195 at 5.

Mitigating Measures

    The final regulations retain, as one of the nine rules of 
construction, the statutory requirement that mitigating measures, other 
than ordinary eyeglasses or contact lenses, must not be considered in 
determining whether an individual has a disability. Several 
organizations representing persons with disabilities suggested adding 
more examples of mitigating measures, including: job coaches, service 
animals, personal assistants, psychotherapy and other ``human-
mediated'' treatments, and some specific devices used by persons who 
have hearing and/or vision impairments.
    In the final regulations, the Commission has added psychotherapy, 
behavioral therapy, and physical therapy. In the appendix, the 
Commission has explained why other suggested examples were not 
included, noting first that the list is non-exhaustive. Some suggested 
additional examples of mitigating measures are also forms of reasonable 
accommodation, such as the right to use a service animal or job coach 
in the workplace. The Commission emphasizes that its decision not to 
list certain mitigating measures does not create any inference that 
individuals who use these measures would not meet the definition of 
``disability.'' For example, as the appendix points out, someone who 
uses a service animal will still be able to demonstrate a substantial 
limitation in major life activities such as seeing, hearing, walking, 
or performing manual tasks (depending on the reason the service animal 
is used).
    Several employer groups asked the Commission to identify legal 
consequences that follow from an individual's failure to use mitigating 
measures that would alleviate the effects of an impairment. For 
example, some commenters suggested that such individuals would not be 
entitled to reasonable accommodation. The Commission has included a 
statement in the appendix pointing out that the determination of 
whether or not an individual's impairment substantially limits a major 
life activity is unaffected by whether the individual chooses to forgo 
mitigating measures. For individuals who do not use a mitigating 
measure (including, for example, medication or reasonable accommodation 
that could alleviate the effects of an impairment), the availability of 
such measures has no bearing on whether the impairment substantially 
limits a major life activity. The limitations imposed by the impairment 
on the individual, and any negative (non-ameliorative) effects of 
mitigating measures used, determine whether an impairment is 
substantially limiting. The origin of the impairment, whether its 
effects can be mitigated, and any ameliorative effects of mitigating 
measures in fact used may not be considered in determining if the 
impairment is substantially limiting. However, the use or non-use of 
mitigating measures, and any consequences thereof, including any 
ameliorative and non-ameliorative effects, may be relevant in 
determining whether the individual is qualified or poses a direct 
threat to safety.
    Commenters also asked for a clear statement regarding whether the 
non-ameliorative effects of mitigating measures may be considered in 
determining whether an impairment is substantially limiting. Some also 
asked for guidance regarding whether the positive and negative effects 
of mitigating measures can be taken into account when determining 
whether an individual needs a reasonable accommodation.
    The final regulations affirmatively state that non-ameliorative 
effects may be considered in determining whether an impairment is 
substantially limiting. The appendix clarifies, however, that in many 
instances it will not be necessary to consider the non-ameliorative 
effects of mitigating measures to determine that an impairment is 
substantially limiting. For example, whether diabetes is substantially 
limiting will most often be analyzed by considering its effects on 
endocrine functions in the absence of mitigating measures such as 
medications or insulin, rather than by considering the measures someone 
must undertake to keep the condition under control (such as frequent 
blood sugar and insulin monitoring and rigid adherence to dietary 
restrictions). Likewise, whether someone with kidney disease has a 
disability will generally be assessed by considering limitations on 
kidney and bladder functions that would occur without dialysis rather 
than by reference to the burdens that dialysis treatment imposes. The

[[Page 16983]]

appendix also states that both the ameliorative and non-ameliorative 
effects of mitigating measures may be relevant in deciding non-coverage 
issues, such as whether someone is qualified, needs a reasonable 
accommodation, or poses a direct threat.
    Some commenters also asked for a more precise definition than the 
statutory definition of the term ``ordinary eyeglasses or contact 
lenses.'' For example, one commenter proposed that ``fully corrected'' 
means visual acuity of 20/20. Another commenter representing human 
resources professionals from large employers suggested a rule that any 
glasses that can be obtained from a ``walk-in retail eye clinic'' would 
be considered ordinary eyeglasses or contact lenses, including bi-focal 
and multi-focal lenses. An organization representing individuals who 
are blind or have vision impairments wanted us to say that glasses that 
enhance or augment a visual image but that may resemble ordinary 
eyeglasses should not be considered when determining whether someone is 
substantially limited in seeing.
    The final regulations do not adopt any of these approaches. The 
Commission believes that the NPRM was clear that the distinction 
between ``ordinary eyeglasses or contact lenses'' on the one hand and 
``low vision devices'' on the other is how they function, not how they 
look or where they were purchased. Whether lenses fully correct visual 
acuity or eliminate refractive error is best determined on the basis of 
current and objective medical evidence. The Commission emphasizes, 
however, that even if such evidence indicates that visual acuity is 
fully corrected or that refractive error is eliminated, this means only 
that the effect of the eyeglasses or contact lenses shall be considered 
in determining whether the individual is substantially limited in 
seeing, not that the individual is automatically excluded from the 
law's protection.
    Numerous comments were made on the proposed inclusion of surgical 
interventions as mitigating measures. Many asked the Commission to 
delete the reference to surgical interventions entirely; others wanted 
us to delete the qualification that surgical interventions that 
permanently eliminate an impairment are not considered mitigating 
measures. Some comments proposed language that would exclude from 
mitigating measures those surgical interventions that ``substantially 
correct'' an impairment. Some comments endorsed the definition as 
written, but suggested we provide examples of surgical interventions 
that would permanently eliminate an impairment.
    The Commission has eliminated ``surgical interventions, except for 
those that permanently eliminate an impairment'' as an example of a 
mitigating measure in the regulation, given the confusion evidenced in 
the comments about how this example would apply. Determinations about 
whether surgical interventions should be taken into consideration when 
assessing whether an individual has a disability are better assessed on 
a case-by-case basis.
    Finally, some commenters asked the Commission to address generally 
what type of evidence would be sufficient to establish whether an 
impairment would be substantially limiting without the ameliorative 
effects of a mitigating measure that the individual uses. In response 
to such comments, the Commission has added to the appendix a statement 
that such evidence could include evidence of limitations that a person 
experienced prior to using a mitigating measure, evidence concerning 
the expected course of a particular disorder absent mitigating 
measures, or readily available and reliable information of other types.

Impairments That Are Episodic or in Remission

    One commenter suggested that the regulatory provision on 
impairments that are ``episodic or in remission'' should be clarified 
to eliminate from coverage progressive impairments such as Parkinson's 
Disease on the ground that they would not be disabilities in the 
``early stages.'' The Commission declines to make this revision, 
recognizing that because ``major bodily functions'' are themselves 
``major life activities,'' Parkinson's Disease even in the ``early 
stages'' can substantially limit major life activities, such as brain 
or neurological functions. Some employer groups also asked the 
Commission to provide further guidance on distinguishing between 
episodic conditions and those that may, but do not necessarily, become 
episodic, as indicated by subsequent ``flare ups.'' As the Commission 
has indicated in the regulations and appendix provisions on mitigating 
measures, these questions may in some cases be resolved by looking at 
evidence such as limitations experienced prior to the use of the 
mitigating measure or the expected course of a disorder absent 
mitigating measures. However, recognizing that there may be various 
ways that an impairment may be shown to be episodic, we decline to 
address such evidentiary issues with any greater specificity in the 
rulemaking.

Predictable Assessments

    Section 1630.2(j)(5) of the NPRM provided examples of impairments 
that would ``consistently meet the definition of disability'' in light 
of the statutory changes to the definition of ``substantially limits.'' 
Arguing that Sec.  1630.2(j)(5) of the NPRM created a ``per se list'' 
of disabilities, many commenters, particularly representatives of 
employers and employer organizations, asked for the section's deletion, 
so that all impairments would be subject to the same individualized 
assessment. Equally strong support for this section was expressed by 
organizations representing individuals with disabilities, some of whom 
suggested that impairments such as learning disabilities, AD/HD, panic 
and anxiety disorder, hearing impairments requiring use of a hearing 
aid or cochlear implant, mobility impairments requiring the use of 
canes, crutches, or walkers, and multiple chemical sensitivity be added 
to the list of examples in NPRM Sec.  1630.2(j)(5). Many of the 
commenters who expressed support for this section also asked that NPRM 
Sec.  1630.2(j)(6) (concerning impairments that may be substantially 
limiting for some individuals but not for others) be deleted, as it 
seemed to suggest that these impairments were of lesser significance 
than those in NPRM Sec.  (j)(5).
    In response to these concerns, the Commission has revised this 
portion of the regulations to make clear that the analysis of whether 
the types of impairments discussed in this section (now Sec.  
1630.2(j)(3)) substantially limit a major life activity does not depart 
from the hallmark individualized assessment. Rather, applying the 
various principles and rules of construction concerning the definition 
of disability, the individualized assessment of some types of 
impairments will, in virtually all cases, result in a finding that the 
impairment substantially limits a major life activity, and thus the 
necessary individualized assessment of these types of impairments 
should be particularly simple and straightforward. The regulations also 
provide examples of impairments that should easily be found to 
substantially limit a major life activity.
    The Commission has also deleted Sec.  1630.2(j)(6) that appeared in 
the NPRM. However, the Commission did not agree with those commenters 
who thought it was necessary to include in Sec.  1630.2(j)(3) of the 
final regulations all the impairments that were the subject of

[[Page 16984]]

examples in NPRM Sec.  1630.2(j)(6), or that other impairments not 
previously mentioned in either section should be included in (j)(3). 
The Commission has therefore declined to list additional impairments in 
Sec.  1630.2(j)(3) of the final regulations. The regulations as written 
permit courts to conclude that any of the impairments mentioned in 
Sec.  1630.2(j)(6) of the NPRM or other impairments ``substantially 
limit'' a major life activity.
    Section 1630.2(j)(8) of the NPRM provided examples of impairments 
that ``are usually not disabilities.'' Some commenters asked for 
clarity concerning whether, and under what circumstances, any of the 
impairments included in the examples might constitute disabilities 
under the first or second prong, or asked that the section title be 
revised by replacing ``usually'' with ``consistently.'' Other 
commenters asked whether the listed impairments would be considered 
``transitory and minor'' for purposes of the ``regarded as'' 
definition, or wanted clarification that the listed impairments were 
not necessarily ``transitory and minor'' in all instances. A few 
organizations recommended deletion of certain impairments from the list 
of examples, such as a broken bone that is expected to heal completely 
and a sprained joint. In the final regulations, the Commission deleted 
this section, again due to the confusion it presented.

Condition, Manner, or Duration

    Comments from both employers and groups writing on behalf of 
individuals with disabilities proposed that the Commission continue to 
use the terms ``condition, manner, or duration,'' found in the appendix 
accompanying EEOC's 1991 ADA regulations, as part of the definition of 
``substantially limits.'' Many employer groups seemed to think the 
concepts were relevant in all cases; disability groups generally 
thought they could be relevant in some cases, but do not need to be 
considered rigidly in all instances.
    In response, the Commission has inserted the terms ``condition, 
manner, or duration'' as concepts that may be relevant in certain cases 
to show how an individual is substantially limited, although the 
concepts may often be unnecessary to conduct the analysis of whether an 
impairment ``substantially limits'' a major life activity. The 
Commission has also included language to illustrate what these terms 
mean, borrowing from the examples in Sec.  1630.2(j)(6) of the NPRM, 
which has been deleted from the final regulations. For example, 
``condition, manner, or duration'' might mean the difficulty or effort 
required to perform a major life activity, pain experienced when 
performing a major life activity, the length of time a major life 
activity can be performed, or the way that an impairment affects the 
operation of a major bodily function.

Substantially Limited in Working

    The proposed rule had replaced the concepts of a ``class'' or 
``broad range'' of jobs from the 1991 regulations defining substantial 
limitation in working with the concept of a ``type of work.'' A number 
of commenters asked the Commission to restore the concepts of a class 
or broad range of jobs. Many other comments supported the ``type of 
work'' approach taken in the NPRM. Some supporters of the ``type of 
work'' approach sought additional examples of types of work (e.g., jobs 
requiring working around chemical fumes and dust, or jobs that require 
keyboarding or typing), and requested that certain statements in the 
appendix be moved into the regulations.
    In issuing the final regulations, the Commission has moved the 
discussion of how to analyze the major life activity of working to the 
appendix, since no other major life activity is singled out in the 
regulations for elaboration. Rather than attempting to articulate a new 
``type of work'' standard that may cause unnecessary confusion, the 
Commission has retained the original part 1630 ``class or broad range 
of jobs'' formulation in the appendix, although we explain how this 
standard must be applied differently than it was prior to the 
Amendments Act. We also provide a more streamlined discussion and 
examples of the standard to comply with Congress's exhortation in the 
Amendments Act to favor broad coverage and disfavor extensive analysis 
(Section 2(b)(5) (Findings and Purposes)).

Section 1630.2(k): Record of a Disability

    Some commenters asked the Commission to revise this section to 
state that a ``record'' simply means a past history of a substantially 
limiting impairment, not necessarily that the past history has to be 
established by a specific document. Although some commenters sought 
deletion of the statement (in Sec. Sec.  1630.2(o) and 1630.9) that 
individuals covered under the ``record of'' prong may get reasonable 
accommodations, others agreed that the language of the Amendments Act 
is consistent with the Commission's long-held position and wanted 
examples of when someone with a history of a substantially limiting 
impairment would need accommodation. Some comments recommended that the 
Commission make the point that a person with cancer (identified in one 
of the NPRM examples) could also be covered under the first prong.
    The final regulations streamline this section by moving the 
examples of ``record of'' disabilities to the appendix. The Commission 
has also added a paragraph to this section to make clear that 
reasonable accommodations may be required for individuals with a record 
of an impairment that substantially limits a major life activity, and 
has provided an example of when a reasonable accommodation may be 
required. The Commission has not added language to state explicitly 
that the past history of an impairment need not be reflected in a 
specific document; we believe that this is clear in current law, and 
this point is reflected in the appendix.

Section 1630.2(l): Regarded As

    Many comments revealed confusion as to both the new statutory and 
proposed regulatory definition of the ``regarded as'' prong in general, 
and the ``transitory and minor'' exception in particular. Other 
comments simply requested clarification of the ``transitory and minor'' 
exception. The final regulations provide further clarification and 
explanation of the scope of ``regarded as'' coverage.
    The final regulations and appendix make clear that even if coverage 
is established under the ``regarded as'' prong, the individual must 
still establish the other elements of the claim (e.g., that he or she 
is qualified) and the employer may raise any available defenses. In 
other words, a finding of ``regarded as'' coverage is not itself a 
finding of liability.
    The final regulations and appendix also explain that the fact that 
the ``regarded as'' prong requires proof of causation in order to show 
that a person is covered does not mean that proving a claim based on 
``regarded as'' coverage is complex. As noted in the appendix, while a 
person must show, both for coverage under the ``regarded as'' prong and 
for ultimate liability, that he or she was subjected to a prohibited 
action because of an actual or perceived impairment, this showing need 
only be made once. Thus, a person proceeding under the ``regarded as'' 
prong may demonstrate a violation of the ADA by meeting the burden of 
proving that: (1) He or she has an impairment or was perceived by a 
covered entity to have an impairment, and (2) the covered entity 
discriminated against him or her because of the impairment in violation 
of the statute. Finally, the final regulations make clear that an 
employer

[[Page 16985]]

may show that an impairment is ``transitory and minor'' as a defense to 
``regarded as'' coverage. 29 CFR 1630.15(f).
    The final regulations and appendix, at Sec.  1630.2(j), also make 
clear that the concepts of ``major life activities'' and 
``substantially limits'' (relevant when evaluating coverage under the 
first or second prong of the definition of ``disability'') are not 
relevant in evaluating coverage under the ``regarded as'' prong. Thus, 
in order to have regarded an individual as having a disability, a 
covered entity need not have considered whether a major life activity 
was substantially limited, and an individual claiming to have been 
regarded as disabled need not demonstrate that he or she is 
substantially limited in a major life activity.
    Concerning specific issues with which commenters disagreed, some 
criticized examples of impairments that the Commission said would be 
considered transitory and minor--specifically, a broken leg that heals 
normally and a sprained wrist that limits someone's ability to type for 
three weeks. These commenters claimed that these impairments, though 
transitory, are not minor. Consistent with its effort to streamline the 
text of the final rule, the Commission has deleted examples that 
appeared in the NPRM, illustrating how the ``transitory and minor'' 
exception applies. However, the appendix to Sec.  1630.2(l) as well as 
the defense as set forth in Sec.  1630.15(f) include examples involving 
an employer that takes a prohibited action against an employee with 
bipolar disorder that the employer claims it believed was transitory 
and minor, and an employer that takes a prohibited action against an 
individual with a transitory and minor hand wound that the employer 
believes is symptomatic of HIV infection. These examples are intended 
to illustrate the point that whether an actual or perceived impairment 
is transitory and minor is to be assessed objectively.
    In response to a specific request in the preamble to the NPRM, the 
Commission received many comments about the position in the proposed 
rule that actions taken because of an impairment's symptoms or because 
of the use of mitigating measures constitute actions taken because of 
an impairment under the ``regarded as'' prong. Individuals with 
disabilities and organizations representing them for the most part 
endorsed the position, noting that the symptoms of, and mitigating 
measures used for, an impairment are part and parcel of the impairment 
itself, and that this provision is necessary to prevent employers from 
evading ``regarded as'' coverage by asserting that the challenged 
employment action was taken because of the symptom or medication, not 
the impairment, even when it knew of the connection between the two. 
Others asked the Commission to clarify that this interpretation applied 
even where the employer had no knowledge of the connection between the 
impairment and the symptom or mitigating measure. However, employers 
and organizations representing employers asked that this language be 
deleted in its entirety. They were particularly concerned that an 
employer could be held liable under the ADA for disciplining an 
employee for violating a workplace rule, where the violation resulted 
from an underlying impairment of which the employer was unaware.
    In light of the complexity of this issue, the Commission believes 
that it requires a more comprehensive treatment than is possible in 
this regulation. Therefore, the final regulations do not explicitly 
address the issue of discrimination based on symptoms or mitigating 
measures under the ``regarded as'' prong. No negative inference 
concerning the merits of this issue should be drawn from this deletion. 
The Commission's existing position, as expressed in its policy 
guidance, court filings, and other regulatory and sub-regulatory 
documents, remains unchanged.
    Finally, because the new law makes clear that an employer regards 
an individual as disabled if it takes a prohibited action against the 
individual because of an actual or perceived impairment that was not 
``transitory and minor,'' whether or not myths, fears, or stereotypes 
about disability motivated the employer's decision, the Commission has 
deleted certain language about myths, fears, and stereotypes from the 
1991 version of this section of the appendix that might otherwise be 
misconstrued when applying the new ADA Amendments Act ``regarded as'' 
standard.

Issues Concerning Evidence of Disability

    The Commission also received comments from both employer groups and 
organizations writing on behalf of people with disabilities asking that 
the regulations address what kind of information an employer may 
request about the nature of an impairment (e.g., during the interactive 
process in response to a request for reasonable accommodation), and the 
amount and type of evidence that would be sufficient in litigation to 
establish the existence of a disability. Some employer groups, for 
example, asked the Commission to emphasize that a person requesting a 
reasonable accommodation must participate in the interactive process by 
providing appropriate documentation where the disability and need for 
accommodation are not obvious or already known. Organizations writing 
on behalf of persons with disabilities asked the Commission to state in 
the regulations that a diagnosis of one of the impairments in NPRM 
Sec.  1630.2(j)(5) is sufficient to establish the existence of a 
disability; that the Commission should emphasize, even more so than in 
the NPRM, that proving disability is not an onerous burden; that in 
many instances the question of whether a plaintiff in litigation has a 
disability should be the subject of stipulation by the parties; and 
that an impairment's effects on major bodily functions should be 
considered before its effects on other major life activities in 
determining whether an impairment substantially limits a major life 
activity. Both employer groups and organizations submitting comments on 
behalf of individuals with disabilities asked the Commission to clarify 
the statement in the NPRM that objective scientific and medical 
evidence can be used to establish the existence of a disability.
    The Commission believes that most of these proposed changes 
regarding evidentiary matters are either unnecessary or not appropriate 
to address in the regulations. For example, the Commission has stated 
repeatedly in numerous policy documents and technical assistance 
publications that individuals requesting accommodation must provide 
certain supporting medical information if the employer requests it, and 
that the employer is permitted to do so if the disability and/or need 
for accommodation are not obvious or already known. The ADA Amendments 
Act does not alter this requirement. The Commission also does not think 
it appropriate to comment in the regulations or the appendix on how ADA 
litigation should be conducted, such as whether parties should 
stipulate to certain facts or whether use of certain major life 
activities by litigants or courts should be preferred.
    However, based on the comments received, the Commission has 
concluded that clarification of language in the NPRM regarding use of 
scientific and medical evidence is warranted. The final regulations, at 
Sec.  1630.2(j)(1)(v), state that the comparison of an individual's 
performance of a major life activity to the performance of the same 
major life activity by most people in the

[[Page 16986]]

general population usually will not require scientific, medical, or 
statistical analysis. However, the final regulations also state that 
this provision is not intended to prohibit the presentation of 
scientific, medical, or statistical evidence to make such a comparison 
where appropriate. In addition, the appendix discusses evidence that 
may show that an impairment would be substantially limiting in the 
absence of the ameliorative effects of mitigating measures.

Section 1630.2(m): Definition of ``Qualified''

    The final regulations and accompanying appendix make slight changes 
to this section to eliminate use of the term ``qualified individual 
with a disability,'' consistent with the ADA Amendments Act's 
elimination of that term throughout most of title I of the ADA.

Section 1630.2(o): Reasonable Accommodation

    The Commission has added a new provision (o)(4) in Sec.  1630.2(o) 
of the final regulations, providing that a covered entity is not 
required to provide a reasonable accommodation to an individual who 
meets the definition of disability solely under the ``regarded as'' 
prong (Sec.  1630.2(g)(1)(iii)). The Commission has also made changes 
to this section to eliminate use of the term ``qualified individual 
with a disability,'' consistent with the ADA Amendments Act's 
elimination of that term throughout most of title I of the ADA.

Section 1630.4: Discrimination Prohibited

    The Commission has reorganized Sec.  1630.4 of the final 
regulations, adding a new provision in Sec.  1630.4(b) to provide, as 
stated in the Amendments Act, that 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.

Section 1630.9: Not Making Reasonable Accommodation

    The final regulations include a technical revision to Sec.  
1630.9(c) to conform citations therein to the amended ADA. In addition, 
a new Sec.  1630.9(e) has been added stating again that a covered 
entity is not required to provide a reasonable accommodation to an 
individual who meets the definition of disability solely under the 
``regarded as'' prong (Sec.  1630.2(g)(1)(iii)). In addition, the 
appendix to Sec.  1630.9 is amended to revise references to the term 
``qualified individual with a disability'' in order to conform to the 
statutory changes made by the Amendments Act.

Section 1630.10: Qualification Standards, Tests, and Other Selection 
Criteria.

    The final regulations include a new Sec.  1630.10(b) explaining the 
amended ADA provision regarding qualification standards and tests 
related to uncorrected vision.

Section 1630.15: Defenses

    The final regulations include a new Sec.  1630.15(f), and 
accompanying appendix section, explaining the ``transitory and minor'' 
defense to a charge of discrimination where coverage would be shown 
solely under the ``regarded as'' prong of the definition.

Section 1630.16: Specific Activities Permitted

    The final regulations include terminology revisions to Sec. Sec.  
1630.16(a) and (f) to conform to the statutory deletion of the term 
``qualified individual with a disability'' in most parts of title I.

Regulatory Procedures

Final Regulatory Impact Analysis

Executive Orders 12866 and 13563

    The final rule, which amends 29 CFR Part 1630 and the accompanying 
interpretive guidance, has been drafted and reviewed in accordance with 
EO 12866, 58 FR 51735 (Sept. 30, 1993), Principles of Regulations, and 
EO 13563, 76 FR 3821, (Jan. 21, 2011), Improving Regulation and 
Regulatory Review. The rule is necessary to bring the Commission's 
prior regulations into compliance with the ADA Amendments Act of 2008, 
which became effective January 1, 2009, and explicitly invalidated 
certain provisions of the prior regulations. The new final regulations 
and appendix are intended to add to the predictability and consistency 
of judicial interpretations and executive enforcement of the ADA as now 
amended by Congress.
    The final regulatory impact analysis estimates the annual costs of 
the rule to be in the range of $60 million to $183 million, and 
estimates that the benefits will be significant. While those benefits 
cannot be fully quantified and monetized at this time, the Commission 
concludes that consistent with EO 13563, the benefits (quantitative and 
qualitative) will justify the costs. Also consistent with EO 13563, we 
have attempted to ``use the best avail