The Equal Employment Opportunity Commission (EEOC) recently approved a notice of proposed rulemaking regarding its regulations interpreting the Americans with Disabilities Act (ADA). A copy of the proposed regs can be found here (hat tip to @HR Hero).

Among other things, the proposed changes would:

• Expand the list of major life activities to include things like bending, reading, reaching, sitting, interacting with others and communicating. The expansion enables individuals to more readily meet the threshold requirement of demonstrating that they are substantially limited in a “major life activity.”

• Direct courts to apply a “common sense” comparison of the impaired employee’s limitations to those of the average person in the population, applying the standard that a condition need not significantly or severely restrict performance of any major life activity to be substantially limiting. Many courts (5th Circuit included) require a plaintiff to prove a substantial limitation in working by establishing statistics on the number of jobs the plaintiff could not perform due to impairment. Under the proposed regs, it appears that a statistical analysis as to the extent of a person’s limitation is not necessary to establish a substantial limitation in a major life activity.

• Establish that specific medical conditions (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) per se disabilities under the ADA — even if they are in remission or treated with medication — so long as they would “substantially limit” a major life activity when active.

• Add “surgical intervention” to the list of mitigating measures (such as medication and assistive devices) that can no longer be taken into account when determining whether an individual’s medical condition rises to the level of disability.

• Add “work” to the list of what is now identified as a major life activity.

These proposed changes are big and if unchanged after the public comment period will likely lead to litigation as employers sort this out and employees seek reasonable accommodation.

The public has 60 days to comment on these proposed regulations (pages 1-2 of the download provide instructions on how/where to comment). Final regulations will likely be issued in the first quarter of 2010.

When the 60-day period for public comment ends, the EEOC may revise its proposal in response to the comments it receives or adopt the regulations as issued. Meanwhile, because the ADA Amendments Act went into effect in January 2009, employers should exercise caution and take into account the proposed regulations when deciding whether someone is disabled under the ADA.

A helpful Q&A may be found here.