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New ADA Rules May Create Per Se List of Disabling Medical Conditions

    Client Alerts
  • July 17, 2009

Last month, the Equal Employment Opportunity Commission voted to proceed with issuance of new regulations implementing the provisions of the ADA Amendments Act of 2008.  While the rules have not yet been issued in proposed form, one apparent approach taken by the EEOC may cause considerable controversy with employers.

During its meeting on the new rules, the EEOC staff indicated its intention to issue a list of medical conditions that would always be considered disabilities by the agency when processing Charges of Discrimination.  In addition to universally recognized conditions such as blindness, deafness, intellectual disabilities and missing limbs, this list includes autism, cancer, cerebral palsy, diabetes, epilepsy, HIV and AIDS, multiple sclerosis, major depression, bipolar disorder, post-traumatic stress disorder, and schizophrenia.

In most situations, these medical conditions will meet the definition of an ADA disability because they substantially impair a major life activity or bodily function.  However, there may be some circumstances where the impairment is very mild or is in the extremely early stages of the condition.  The ADA requires that disability be determined on a case-by-case basis.  By adopting a per se rule, the EEOC appears to be attempting to avoid this obligation to demonstrate impairment in each specific instance.

The proposed ADA regulations have been sent to OMB for review, and are likely to be published for notice and comment in the Fall.  Interested employers may wish to comment on any automatic disability listing contained in the proposed rules.