Federal Register / Vol. 74, No. 183 / Wednesday, September 23, 2009 / Proposed Rules 48431 

(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. 

(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 

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 http:// 

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 http:// 

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– 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

48432 Federal Register / Vol. 74, No. 183 / Wednesday, September 23, 2009 / Proposed Rules 

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 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 

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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Federal Register / Vol. 74, No. 183 / Wednesday, September 23, 2009 / Proposed Rules 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 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,’’ 

http://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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48434 Federal Register / Vol. 74, No. 183 / Wednesday, September 23, 2009 / Proposed Rules 

1Figures derived from personal communication 

from James Lee Schmeling, Syracuse Law School, 

7/13/2009. 

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)) 

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. 

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 Bruye`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 & Bruye`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—BRUYE`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 

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Federal Register / Vol. 74, No. 183 / Wednesday, September 23, 2009 / Proposed Rules 48435 

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. 

3Communication 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. 

TABLE 2—BRUYE`RE AND NISHII, 2009 UNPUBLISHED—Continued 

Total Sample 5000 

Cost Midpoint Number Total 

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. 

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 Bruye`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 & Bruye`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 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 

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 http://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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48436 Federal Register / Vol. 74, No. 183 / Wednesday, September 23, 2009 / Proposed Rules 

4Statistics 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. 

5Note 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. 

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. 

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 

Year Workers with 

disabilities 

Labor force 

participants 

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

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 http://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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6There 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 Bruye`re listed 20 different 

accommodations. Additionally Nishii and Bruye`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). 

8Using 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. 

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,’’ http:// 

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 Bruye`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. 

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 $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 cost Total cost 

(million) 

Accommodations 

over 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

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. 

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48438 Federal Register / Vol. 74, No. 183 / Wednesday, September 23, 2009 / Proposed Rules 

9http://www.sba.gov/advo/research/us_06ss.pdf. 10Occupational Outlook Handbook, 2008–09 

Editionhttp://stats.bls.gov/OCO/OCOS021.HTM, 

downloaded September 2, 2009. 

11Source: U.S. Small Business Administration, 

Office of Advocacy, based on data provided by the 

U.S. Census Bureau, Statistics of U.S. Businesses. 

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 & Bruye`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 & Bruye`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

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 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 

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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 

all workers with disabilities requesting 

reasonable accommodations. 

TABLE 2—IMPACT ON SMALL BUSINESSES BASED ON 16 PERCENT REQUEST RATE

Accommodations over five years, 

all firms Small business accommodations Establishments from 15 to 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 § 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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48440 Federal Register / Vol. 74, No. 183 / Wednesday, September 23, 2009 / Proposed Rules 

§ 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 § 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 

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 20- 

pound 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. 

(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 

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 

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 

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 

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 

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. 

(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. 

* * * * * 

(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’’ 

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: 

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. 

Section 1630.1 Purpose, Applicability and 

Construction 

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 

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 

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. 

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 

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. 

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 

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 

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 

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 

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. 

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 

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. 

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. 

* * * * * 

[FR Doc. E9–22840 Filed 9–22–09; 8:45 am] 

BILLING CODE 6570–01–P 

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. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R06– 

OAR–2005–TX–0025, by one of the 

following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

• U.S. EPA Region 6 ‘‘Contact Us’’ 

Web site: http://epa.gov/region6/ 

r6coment.htm. Please click on ‘‘6PD’’ 

(Multimedia) and select ‘‘Air’’ before 

submitting comments. 

• E-mail: Mr. Stanley M. Spruiell at 

spruiell.stanley@epa.gov. 

• Fax: Mr. Stanley M. Spruiell, Air 

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. 

Stanley M. Spruiell, Air Permits Section 

(6PD–R), Environmental Protection 

Agency, 1445 Ross Avenue, Suite 1200, 

Dallas, Texas 75202–2733. Such 

deliveries are accepted only between the 

hours of 8:00 a.m. and 4:00 p.m. 

weekdays except for legal holidays. 

Special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R06–OAR–2005– 

TX–0025. EPA’s policy is that all 

comments received will be included in 

the public docket without change and 

may be made available online at 

http://www.regulations.gov, including 

any personal information provided, 

unless the comment includes 

information claimed to be Confidential 

Business Information (CBI) or other 

information whose disclosure is 

restricted by statute. Do not submit 

information that you consider to be CBI 

or otherwise protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

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