Individualized ADA assessment by checklist?

The much-anticipated proposed regulation implementing the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) is set to be published in the Federal Register the week of September 21, now that the Equal Employment Opportunity Commission (EEOC) has approved its notice of proposed rulemaking by a 2-1 vote. And it looks like the new regulation will include a checklist of impairments that always constitute a “disability” under the ADA.

The ADAAA, which took effect January 1, 2009, expands the scope of the ADA’s coverage. The new law leaves undisturbed the 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, but changes the manner in which these terms are interpreted.

The federal agency says that, consistent with the ADAAA, its proposed rule emphasizes that:

• the definition of disability - an impairment that poses a substantial limitation in a major life activity - must 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;
• major life activities include “major bodily functions”;
• mitigating measures, such as medications and devices that people use to reduce or eliminate the effects of an impairment, are not to be considered when determining whether someone has a disability; and
• impairments that are episodic or in remission, such as epilepsy, cancer, and many kinds of psychiatric impairments, are disabilities if they would “substantially limit” major life activities when active.

According to the EEOC, its proposed regulation also provides a more straightforward way of demonstrating a substantial limitation in the major life activity of working, and implements the ADAAA’s new standard for determining whether someone is “regarded as” having a disability.

A new question-and-answer document (Q&A) posted on the EEOC’s website on September 17 gives a preview of what to expect in the proposed regulation. Of particular interest to employers is a list of impairments that will “consistently meet the definition of 'disability'”:

• deafness;
• blindness;
• intellectual disability;
• partially or completely missing limbs;
• mobility impairments requiring use of a wheelchair (a mitigating measure);
• autism;
• cancer;
• cerebral palsy;
• diabetes;
• epilepsy;
• HIV/AIDS;
• multiple sclerosis;
• muscular dystrophy;
• major depression;
• bipolar disorder;
• post-traumatic stress disorder;
• obsessive-compulsive disorder; and
• schizophrenia.

The Q&A instructs that “the individualized assessment of whether a substantial limitation exists can be done very quickly and easily with respect to these types of impairments, and will consistently result in a finding of disability.”

But is an “individualized assessment” meaningful when it is expressly presumed that the same result will always be obtained?

This looks more like a checklist – a per se list of disabilities – than the “individualized assessment” that has always been the cornerstone of any ADA analysis. Will employers have any argument against these asserted impairments? Has the EEOC gone too far?