Regulations To Implement the Equal Employment Provisions of the Americans With Disabilities Act, as Amended, 48431-48450 [E9-22840]
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Federal Register / Vol. 74, No. 183 / Wednesday, September 23, 2009 / Proposed Rules
(ii) § 820.30 of this chapter. Design
controls.
(iii) § 820.50 of this chapter.
Purchasing controls.
(iv) § 820.100 of this chapter.
Corrective and preventive action.
(v) § 820.170 of this chapter.
Installation.
(vi) § 820.200 of this chapter.
Servicing.
(2) If the combination product
includes a device constituent part and a
drug constituent part, and the current
good manufacturing practice operating
system has been shown to comply with
the QS regulation, the following
provisions of the drug cGMPs must also
be shown to have been satisfied; upon
demonstration that these requirements
have been satisfied, no additional
showing of compliance with respect to
the drug cGMPs need be made:
(i) § 211.84 of this chapter. Testing
and approval or rejection of
components, drug product containers,
and closures.
(ii) § 211.103 of this chapter.
Calculation of yield.
(iii) § 211.132 of this chapter. Tamperevident packaging requirements for
over-the-counter (OTC) human drug
products.
(iv) § 211.137 of this chapter.
Expiration dating.
(v) § 211.165 of this chapter. Testing
and release for distribution.
(vi) § 211.166. of this chapter.
Stability testing.
(vii) § 211.167 of this chapter. Special
testing requirements.
(viii) § 211.170 of this chapter.
Reserve samples.
(3) In addition to being shown to
comply with the other applicable
current good manufacturing practice
requirements listed under § 4.3, if the
combination product includes a
biological product constituent part, the
current good manufacturing practice
operation system must also be shown to
implement and comply with all current
good manufacturing practice
requirements identified under § 4.3(c)
that would apply to that biological
product if that constituent part were not
part of a combination product.
(4) In addition to being shown to
comply with the other applicable
current good manufacturing practice
requirements listed under § 4.3, if the
combination product includes an
HCT/P, the current good manufacturing
practice operation system must also be
shown to implement and comply with
all current good manufacturing practice
requirements identified under § 4.3(d)
that would apply to that HCT/P
constituent part if that constituent part
were not part of a combination product.
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(c) During any period in which the
manufacture of a constituent part to be
included in a co-packaged or singleentity combination product occurs at a
separate facility from the other type(s) of
constituent part(s) to be included in that
single-entity or co-packaged
combination product, the current good
manufacturing practice operating
system for that constituent part must be
demonstrated to comply with all current
good manufacturing practice
requirements applicable to that type of
constituent part.
(d) When two or more types of
constituent parts to be included in a
single-entity or co-packaged
combination product have arrived at the
same facility, or the manufacture of
these constituent parts is proceeding at
the same facility, application of a
current good manufacturing process
operating system that complies with
§ 4.4(b) may begin, except with respect
to any constituent part that remains or
becomes subject to § 4.4(c).
(e) The current good manufacturing
practice requirements set forth in this
subpart and in parts 210, 211, 600
through 680, 820, and 1271 of this
chapter, supplement, and do not
supersede, each other unless the
regulations explicitly provide otherwise.
In the event of a conflict between
regulations applicable under this
subpart to combination products,
including their constituent parts, the
regulations most specifically applicable
to the constituent part in question shall
supersede the more general.
Subpart B [Reserved]
Dated: September 17, 2009.
David Horowitz,
Assistant Commissioner for Policy.
[FR Doc. E9–22850 Filed 9–22–09; 8:45 am]
BILLING CODE 4160–01–S
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
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48431
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 https://
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 https://
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–
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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
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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 nonexhaustive lists:
—The first list includes activities such
as caring for oneself, performing
manual tasks, seeing, hearing, eating,
sleeping, walking, standing, sitting,
reaching, lifting, bending, speaking,
breathing, learning, reading,
concentrating, thinking,
communicating, interacting with
others, and working, some of which
the EEOC previously identified in
regulations and sub-regulatory
guidance, and some of which
Congress additionally included in the
Amendments Act;
—The second list includes major bodily
functions, such as functions of the
immune system, special sense organs,
and skin; normal cell growth; and
digestive, genitourinary, bowel,
bladder, neurological, brain,
respiratory, circulatory,
cardiovascular, endocrine, hemic,
lymphatic, musculoskeletal, and
reproductive functions, many of
which were included by Congress in
the Amendments Act, and some of
which have been added by the
Commission as further illustrative
examples;
—Provides that mitigating measures
other than ‘‘ordinary eyeglasses or
contact lenses’’ shall not be
considered in assessing whether an
individual has a ‘‘disability’’;
—Provides that an impairment that is
episodic or in remission is a disability
if it would substantially limit a major
life activity when active;
—Provides that the definition of
‘‘regarded as’’ is changed so that it no
longer requires a showing that the
employer perceived the individual to
be substantially limited in a major life
activity, and instead provides that an
applicant or employee who is
subjected to an action prohibited by
the ADA (e.g., failure to hire, denial
of promotion, or termination) because
of an actual or perceived impairment
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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:
—§ 1630.1 (adds subsections (3) and
(4));
—§ 1630.2(g)(3) (adds cross-reference to
1630.2(l));
—§ 1630.2 (h) (replaces the term
‘‘mental retardation’’ with the term
‘‘intellectual disability’’);
—§ 1630.2(i) (revises definition of
‘‘major life activities’’ and provides
examples)
—§ 1630.2(j) (revises definition of
‘‘substantially limits’’ and provides
examples)
—§ 1630.2(k) (provides examples of
‘‘record of’’ a disability)
—§ 1630.2(l) (revises definition of
‘‘regarded as’’ having a disability and
provides examples)
—§ 1630.2(m) (revises terminology)
—§ 1630.2(o) (adds subsection (4)
stating that reasonable
accommodations are not available to
individuals who are only ‘‘regarded
as’’ individuals with disabilities)
—§ 1630.4 (renumbers section and adds
subsection (b) regarding ‘‘claims of no
disability’’)
—§ 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)
—§ 1630.10 (revises to add provision on
qualification standards and tests
related to uncorrected vision)
—§ 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
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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
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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
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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
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48433
existing employer policies and
procedures (e.g., use of accrued
annual or sick leave or employer
unpaid leave policy, employer shortor 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,’’
https://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.
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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 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: EvidenceBased Outcomes, 27 Work 345 (2006))
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.
TABLE 1—SCHARTZ, HENDRICKS & BLANCK
Total sample
705
Cost
Midpoint
Number
0 .............................................................................................................................................
1–500 .....................................................................................................................................
501–1,000 ..............................................................................................................................
1,001–1,500 ...........................................................................................................................
1,501–2,000 ...........................................................................................................................
2,001–5,000 ...........................................................................................................................
5,001–10,000 .........................................................................................................................
................................................................................................................................................
Mean Cost .............................................................................................................................
Median Cost ...........................................................................................................................
0
250.5
750.5
751.5
1,750.5
3,500.5
7,500.5
..........................
..........................
..........................
141
359.55
77.55
21.15
21.15
56.4
28.2
705
..........................
..........................
Total
0
90,067.28
58,201.28
15,894.23
37,023.08
197,428.2
211,514.1
610,128.2
865.43
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 Bruyere, 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 & Bruyere 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—BRUYERE AND NISHII, 2009 UNPUBLISHED
5000
Disabled .................................................................................................................................
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Total Sample
145
Cost
Midpoint
0 .............................................................................................................................................
1–100 .....................................................................................................................................
101–500 .................................................................................................................................
1,001–5,000 ...........................................................................................................................
Number
0
50
300.5
3,000.5
1 Figures derived from personal communication
from James Lee Schmeling, Syracuse Law School,
7/13/2009.
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76.85
7.25
24.65
8.7
Total
0
362.5
7,407.325
26,104.35
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48435
`
TABLE 2—BRUYERE AND NISHII, 2009 UNPUBLISHED—Continued
Total Sample
5000
Cost
Midpoint
Number
5,001–10,000 .........................................................................................................................
7,500.5
Mean Cost .............................................................................................................................
Median Cost ...........................................................................................................................
..........................
..........................
..........................
2.9
120.35
..........................
..........................
Total
21,751.45
55,625.63
462.1988
199.5
Assumes 10,000 as the highest cost in the range.
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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.
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 Bruyere 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 & Bruyere report that
the percentages of people with and
without disabilities that request
accommodation are remarkably similar.
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.
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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 disabilityrelated 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 nationallyrepresentative surveys that are widelyused 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
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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-outsidehome 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 https://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
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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
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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.
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.
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.
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TABLE 3—POPULATION WITH DISABIL- from those reported in the comparable
ITIES USING CURRENT POPULATION 1986 poll.
The alternative ACS six question
SURVEY DATA, 1999–2007
Year
1999
2000
2001
2002
2003
2004
2005
2006
2007
..........
..........
..........
..........
..........
..........
..........
..........
..........
Workers with
disabilities
Labor force
participants
with disabilities
3,207,218
3,545,209
3,187,276
3,081,585
2,835,976
3,146,749
3,067,059
3,200,808
3,042,300
3,588,806
3,889,798
3,533,647
3,574,294
3,414,687
3,727,859
3,579,808
3,698,593
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
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
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.
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definition of disability results in
6,217,000 disabled workers in July 2009.
(See https://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, posttraumatic 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 (preamendments) 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 § 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 § 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
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for Disease Control publishes data
regarding the prevalence of most of
these disabilities. See ‘‘Main cause of
disability among civilian noninstitutionalized U.S. adults aged 18
years or older with self reported
disabilities, estimated affected
population and percentages, by sex—
United States, 2005,’’ https://
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
48437
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 Bruyere 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.
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 cost
Total cost
(million)
Accommodations
over five years
(million)
$462
865
1,434
$74
138
229
$15
28
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
Total cost
(million)
Accommodations
over five years
(million)
$462
865
1,434
$379
709
1,176
$76
142
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
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Average accommodation cost
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.
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 Bruyere listed 20 different
`
accommodations. Additionally Nishii and Bruyere
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).
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.
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Federal Register / Vol. 74, No. 183 / Wednesday, September 23, 2009 / Proposed Rules
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.
A rough estimate of administrative
costs might be based on days of human
resource managers time estimated at
$68110 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.
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.
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 & Bruyere (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 & Bruyere (2009)). Table 1 below
indicates the cost for small businesses
when the 82 percent estimate of
reasonable accommodation costs are
used.
mstockstill on DSKH9S0YB1PROD with PROPOSALS
TABLE 1—IMPACT ON SMALL BUSINESSES BASED ON 82 PERCENT REQUEST RATE
Accommodations over five years,
all firms
Small business
accommodations
over five years
Firms from 15 to 499 employees
Cost per firm
75,768,000.00
141,930,520.00
235,176,000.00
26,518,800.00
49,675,682.00
82,311,600.00
844,842
844,842
844,842
31.39
58.80
97.43
9 https://www.sba.gov/advo/research/us_06ss.pdf.
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10 Occupational Outlook Handbook, 2008–09
Editionhttps://stats.bls.gov/OCO/OCOS021.HTM,
downloaded September 2, 2009.
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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.
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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
48439
all workers with disabilities requesting
reasonable accommodations.
TABLE 2—IMPACT ON SMALL BUSINESSES BASED ON 16 PERCENT REQUEST RATE
Small business accommodations
Establishments from 15 to 499
employees
Cost per establishment
14,784,000.00
27,693,760.00
45,888,000.00
mstockstill on DSKH9S0YB1PROD with PROPOSALS
Accommodations over five years,
all firms
5,174,400.00
9,692,816.00
16,060,800.00
844,842
844,842
844,842
6.12
11.47
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
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19:40 Sep 22, 2009
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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:
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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 § 1630.1 to read as follows:
§ 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
§ 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 § 1630.2 by revising
paragraphs (g) through (m) and adding
paragraph (o)(4), to read as follows:
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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)).
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Note to paragraph (g): See § 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
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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 20pound 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.
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(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 § 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 § 1630.2(g)(1)
(actual disability) or § 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 predating 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
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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. WalMart 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
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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
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48441
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.
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(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
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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
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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 jobrelated 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).
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(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
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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.
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(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 § 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 § 1630.4 to read as follows:
§ 1630.4
Discrimination prohibited.
(a) In General. (1) It is unlawful for a
covered entity to discriminate on the
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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 §§ 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 § 1630.9 by revising
paragraph (c) and adding paragraph (e)
to read as follows:
§ 1630.9 Not making reasonable
accommodation.
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*
*
*
*
(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’’
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disabled within the meaning of
§ 1630.2(l) of this part.
6. Revise § 1630.10 to read as follows:
§ 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
§ 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 § 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:
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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,
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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.
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Section 1630.1
Construction
Purpose, Applicability and
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
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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
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48445
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
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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 nonexhaustive 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.
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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
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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
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‘‘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.
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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 noncomprehensive 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. § 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 flareups 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, § 1630.2(j)(5) of the
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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
§§ 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
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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 jobrelated 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
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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
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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
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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
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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 § 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 jobrelated and consistent with business
necessity, that a safety-based exclusion
satisfied the direct threat standard, or any
other applicable defenses under § 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.
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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
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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 § 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 jobrelated 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
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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.
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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 § 1630.2(l); Appendix to
§ 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 jobrelated and consistent with business
necessity.
*
*
*
*
*
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R06–OAR–2005–TX–0025; FRL–8958–
8]
Approval and Promulgation of
Implementation Plans; Texas;
Revisions to the New Source Review
(NSR) State Implementation Plan (SIP);
Modification of Existing Qualified
Facilities Program and General
Definitions
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
SUMMARY: EPA is proposing disapproval
of revisions to the SIP submitted by the
State of Texas that relate to the
Modification of Existing Qualified
Facilities (the Texas Qualified Facilities
State Program or the Program). EPA
proposes disapproval of the Texas
Qualified Facilities State Program
because it does not meet the Minor NSR
SIP requirements nor does it meet the
NSR SIP requirements for a substitute
Major NSR SIP revision.
EPA also proposes to take action on
revisions to the SIP submitted by Texas
for definitions severable from the
definitions in the Qualified Facilities
submittals. EPA proposes to take action
on some of the submitted severable
definitions (General Definitions). We
propose to approve three definitions,
grandfathered facility, maximum
allowable emission rate table (MAERT),
and new facility. We propose to
disapprove the definition for best
available control technology (BACT)
and two subparagraphs, A and B, and
paragraph G under the definition for
modification of existing facility. We
propose to make an administrative
correction to the SIP-approved
definition of facility, and take no action
on the addition to the SIP-approved
definition of federally enforceable
because it relates to a Federal program
that is implemented separately from the
SIP. Third, EPA is proposing to take no
action on a provision not in the Texas
SIP that includes, among other things, a
trading provision containing a crossreference that no longer is in Texas’
rules; EPA will act upon all of it in a
separate notice.
We are proposing action under
section 110, part C, and part D of the
Federal Clean Air Act (the Act or CAA).
EPA is taking comments on this
proposal and intends to take a final
action.
DATES: Comments must be received on
or before November 23, 2009.
PO 00000
Frm 00028
Fmt 4702
Sfmt 4702
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R06–
OAR–2005–TX–0025, by one of the
following methods:
• Federal eRulemaking Portal: https://
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Web site: https://epa.gov/region6/
r6coment.htm. Please click on ‘‘6PD’’
(Multimedia) and select ‘‘Air’’ before
submitting comments.
• E-mail: Mr. Stanley M. Spruiell at
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Permits Section (6PD–R), at fax number
214–665–7263.
• Mail: Mr. Stanley M. Spruiell, Air
Permits Section (6PD–R), Environmental
Protection Agency, 1445 Ross Avenue,
Suite 1200, Dallas, Texas 75202–2733.
• Hand or Courier Delivery: Mr.
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(6PD–R), Environmental Protection
Agency, 1445 Ross Avenue, Suite 1200,
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weekdays except for legal holidays.
Special arrangements should be made
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Instructions: Direct your comments to
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comments received will be included in
the public docket without change and
may be made available online at
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If you send an e-mail comment directly
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Electronic files should avoid the use of
E:\FR\FM\23SEP1.SGM
23SEP1
Agencies
[Federal Register Volume 74, Number 183 (Wednesday, September 23, 2009)]
[Proposed Rules]
[Pages 48431-48450]
From the Federal Register Online via the Government Printing 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 https://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 https://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,'' https://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 https://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 https://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,'' https://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\ https://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 Editionhttps://
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