Regulations To Implement the Equal Employment Provisions of the Americans With Disabilities Act, as Amended, 48431-48450 [E9-22840]

Agencies

• Equal Employment Opportunity Commission

[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]


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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Part 1630

RIN 3046-AA85


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

AGENCY: Equal Employment Opportunity Commission (EEOC).

ACTION: Notice of proposed rulemaking.

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

                                      Table 1--Schartz, Hendricks & Blanck
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                          Total sample                                 705
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Cost                                                                  Midpoint         Number           Total
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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
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Assumes 10,000 as the highest cost in the range.
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    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
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                          Total Sample                                 5000
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Disabled.......................................................            145
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Cost                                                                  Midpoint         Number         Total
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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
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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.
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    \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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    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.
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    \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 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