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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2011-6056

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** March 25, 2011
- **Citation:** 76 FR 16978

## Text

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:

Final Rule.

SUMMARY:

The Equal Employment Opportunity Commission (the Commission or the EEOC) issues its final revised 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, the EEOC is expressly granted the authority to amend these regulations, and is expected to do so.

DATES:

Effective Date:
These final regulations will become effective on May 24, 2011.

FOR FURTHER INFORMATION CONTACT:

Christopher J. 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) 663-4494 (TTY) or to the Publications Information Center at 1-800-669-3362.

SUPPLEMENTARY INFORMATION:

Introduction

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 Amendments Act, 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 the EEOC's ADA regulations. The effect of these changes is to make it easier for an individual
see
king 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 (2008 Senate Statement of Managers); 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) (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) (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 prior 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 (the appendix).

Consistent with the provisions of the Amendments Act and Congress's expressed expectation therein, the Commission drafted a Notice of Proposed Rulemaking (NPRM) that was circulated to the Office of Management and Budget for review (pursuant to Executive Order 12866) and to federal executive branch agencies for comment (pursuant to Executive Order 12067). The NPRM was subsequently published in the
Federal Register
on September 23, 2009 (74 FR 48431), for a sixty-day public comment period. The NPRM sought comment on the proposed regulations, which:

—Provided that the definition of “disability” shall be interpreted broadly;

—Revised 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., Inc.
v.
Williams,
534 U.S. 184 (2002) (2008 Senate Statement of Managers at 6);

—Expanded the definition of “major life activities” through two non-exhaustive lists:

—The first list included 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 included 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 were added by the Commission as further illustrative examples;

—Provided that mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a “disability”;

—Provided that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;

—Provided that the definition of “regarded as” be changed so that it would no longer require a showing that an employer perceived the individual to be substantially limited in a major life activity, and so 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”;

—Provided that actions based on an impairment include actions based on

symptoms of, or mitigating measures used for, an impairment;

—Provided that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation; and,

—Provided 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 NPRM proposed revisions to the following sections of 29 CFR part 1630 and the accompanying provisions of the appendix: § 1630.1 (added (c)(3) and (4)); § 1630.2(g)(3) (added cross-reference to 1630.2(l)); § 1630.2 (h) (replaced the term “mental retardation” with the term “intellectual disability”); § 1630.2(i) (revised definition of “major life activities” and provided examples); § 1630.2(j) (revised definition of “substantially limits” and provided examples); § 1630.2(k) (provided examples of “record of” a disability); § 1630.2(l) (revised definition of “regarded as” having a disability and provided examples); § 1630.2(m) (revised terminology); § 1630.2(o) (added (o)(4) stating that reasonable accommodations are not available to individuals who are only “regarded as” individuals with disabilities); § 1630.4 (renumbered section and added § 1630.4(b) regarding “claims of no disability”); § 1630.9 (revised terminology in § 1630.9(c) and added § 1630.9(e) stating that an individual covered only under the “regarded as” definition of disability is not entitled to reasonable accommodation); § 1630.10 (revised to add provision on qualification standards and tests related to uncorrected vision); and § 1630.16(a) (revised terminology).

These regulatory revisions were explained in the proposed revised part 1630 appendix containing the interpretive guidance. The Commission originally issued the interpretive guidance concurrent with 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 will be issued and published in the
Code of Federal Regulations
with the final regulations. It will continue to represent the Commission's interpretation of the issues discussed in the regulations, and the Commission will be guided by it when resolving charges of employment discrimination under the ADA.

Summary and Response to Comments

The Commission received well over 600 public comments on the NPRM, including, among others: 5 comments from federal agencies that had not previously commented during the inter-agency review process under E.O. 12067 or the Office of Management and Budget review process under E.O. 12866; 61 comments from civil rights groups, disability rights groups, health care provider groups, and attorneys, attorney associations, and law firms on their behalf; 48 comments from employer associations and industry groups, as well as attorneys, attorney associations, and law firms on their behalf; 4 comments from state governments, agencies, or commissions, including one from a state legislator; and 536 comments from individuals, including individuals with disabilities and their family members or other advocates. Each of these comments was reviewed and considered in the preparation of this final rule. The Commission exercised its discretion to consider untimely comments that were received by December 15, 2009, three weeks following the close of the comment period, and these tallies include 8 such comments that were received. The comments from individuals included 454 comments that contained similar or identical content filed by or on behalf of individuals with learning disabilities and/or attention-deficit/hyperactivity disorder (AD/HD), although many of these comments also included an additional discussion of individual experiences.

Consistent with EO 13563, this rule was developed through a process that involved public participation. The proposed regulations, including the preliminary regulatory impact and regulatory flexibility analyses, were available on the Internet for a 60-day public-comment period, and during that time the Commission also held a series of forums in order to promote the open exchange of information. Specifically, the EEOC and the U.S. Department of Justice Civil Rights Division also held four “Town Hall Listening Sessions” in Oakland, California on October 26, 2009; in Philadelphia, Pennsylvania on October 30, 2009, in Chicago, Illinois on November 17, 2009, and in New Orleans, Louisiana on November 20, 2009. During these sessions, Commissioners heard in-person and telephonic comments on the NPRM from members of the public on both a pre-registration and walk-in basis. More than 60 individuals and representatives of the business/employer community and the disability advocacy community from across the country offered comments at these four sessions, a number of whom additionally submitted written comments.

All of the comments on the NPRM received electronically or in hard copy during the public comment period, including comments from the Town Hall Listening Sessions, may be reviewed at the United States Government's electronic docket system,
http://www.regulations.gov,
under docket number EEOC-2009-0012. In most instances, this preamble addresses the comments by issue rather than by referring to specific commenters or comments by name.

In general, informed by questions raised in the public comments, the Commission throughout the final regulations has refined language used in the NPRM to clarify its intended meaning, and has also streamlined the organization of the regulation to make it simpler to understand. As part of these revisions, many examples were moved to the appendix from the regulations, and NPRM language repeatedly stating that no negative implications should be drawn from the citation to particular impairments in the regulations and appendix was deleted as superfluous, given that the language used makes clear that impairments are referenced merely as examples. More significant or specific substantive revisions are reviewed below, by provision.

The Commission declines to make changes requested by some commenters to portions of the regulations and the appendix that we consider to be unaffected by the ADA Amendments Act of 2008, such as to 29 CFR 630.3 (exceptions to definitions), 29 CFR 1630.2(r) (concerning the “direct threat” defense), 29 CFR 1630.8 (association with an individual with a disability), and portions of the appendix that discuss the obligations of employers and individuals during the interactive process following a request for reasonable accommodation. The Commission has also declined to make revisions requested by commenters relating to health insurance, disability and other benefit programs, and the interaction of the ADA, the Family and Medical Leave Act (FMLA), and workers' compensation laws. The Commission believes the proposed regulatory language was clear with respect to any application it may have to these issues.

Terminology

The Commission has made changes to some of the terminology used in the final regulations and the appendix. For example, an organization that represents individuals who have HIV and AIDS asked that the regulations refer to “HIV infection,” instead of “HIV and AIDS.” An organization representing persons with epilepsy sought deletion or clarification of references to “seizure disorders” and “seizure disorders other than epilepsy,” noting that “people who have chronic seizures have epilepsy, unless the seizure is due to [another underlying impairment].” This revision was not necessary since revisions to the regulations resulted in deletion of NPRM § 1630.2(j)(5)(iii) in which the reference to “seizure disorder” appeared. In addition, the Commission made further revisions to conform the regulations and appendix to the statutory deletion of the term “qualified individual with a disability” throughout most of title I of the ADA. The Commission did not make all changes in terminology suggested by commenters, for example declining to substitute the term “challenges” for the terms “disability” and “impairment,” because this would have been contrary to the well-established terminology that Congress deliberately used in the ADA Amendments Act.

Section 1630.2(g): Disability

This section of the regulations includes the basic three-part definition of the term “disability” that was preserved but redefined in the ADA Amendments Act. For clarity, the Commission has referred to the first prong as “actual disability,” to distinguish it from the second prong (“record of”) and the third prong (“regarded as”). The term “actual disability” is used as short-hand terminology to refer to an impairment that substantially limits a major life activity within the meaning of the first prong of the definition of disability. The terminology selected is for ease of reference and is not intended to suggest that individuals with a disability under the first prong otherwise have any greater rights under the ADA than individuals whose impairments are covered under the “record of” or “regarded as” prongs, other than the restriction created by the Amendments Act that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation.

Although an individual may be covered under one or more of these three prongs of the definition, it appeared from comments that the NPRM did not make explicit enough that the “regarded as” prong should be the primary means of establishing coverage in ADA cases that do not involve reasonable accommodation, and that consideration of coverage under the first and second prongs will generally not be necessary except in situations where an individual needs a reasonable accommodation. Accordingly, in the final regulations, § 1630.2(g) and (j)

and their

accompanying interpretive guidance specifically state that cases in which an applicant or employee does not require reasonable accommodation can be evaluated solely under the “regarded as” prong of the definition of “disability.”

Section 1630.2(h): Impairment

Some comments pointed out that the list of body systems in the definition of “impairment” in § 1630.2(h) of the NPRM was not consistent with the description of “major bodily functions” in § 1630.2(i)(1)(ii) that was added due to the inclusion in the Amendments Act of “major bodily functions” as major life activities. In response, the Commission has added references to the immune system and the circulatory system to § 1630.2(h), because both are mentioned in the definition of “major bodily functions” in § 1630.2(i)(1)(ii). Other apparent discrepancies between the definition of “impairment” and the list of “major bodily functions” can be accounted for by the fact that major bodily functions are sometimes defined in terms of the operation of an organ within a body system. For example, functions of the brain (identified in § 1630.2(i)) are part of the neurological system and may affect other body systems as well. The bladder, which is part of the genitourinary system, is already referenced in § 1630.2(h). In response to comments, the Commission has also made clear that the list of body systems in § 1630.2(h)(1) is non-exhaustive, just as the list of mental impairments in § 1630.2(h)(2) has always made clear with respect to its examples. The Commission has also amended the final appendix to § 1630.2(h) to conform to these revisions.

The Commission received several comments seeking explanation of whether pregnancy-related impairments may be disabilities. To respond to these inquiries, the final appendix states that although pregnancy itself is not an impairment, and therefore is not a disability, a pregnancy-related impairment that substantially limits a major life activity is a disability under the first prong of the definition. Alternatively, a pregnancy-related impairment may constitute a “record of” a substantially limiting impairment, or may be covered under the “regarded as” prong if it is the basis for a prohibited employment action and is not “transitory and minor.”

Section 1630.2(i): Major Life Activities

A number of comments, mostly on behalf of individuals with disabilities, suggested that the Commission add more examples of major life activities, particularly to the first non-exhaustive list, including but not limited to typing, keyboarding, writing, driving, engaging in sexual relations, and applying fine motor coordination. Other suggestions ranged widely, including everything from squatting and getting around inside the home to activities such as farming, ranching, composting, operating water craft, and maintaining an independent septic tank.

The Commission does not believe that it is necessary to decide whether each of the many other suggested examples is in fact a major life activity, but we emphasize again that the statutory and regulatory examples are non-exhaustive. We also note that some of the activities that commenters asked to be added may be part of listed major life activities, or may be unnecessary to establishing that someone is an individual with a disability in light of other changes to the definition of “disability” resulting from the Amendments Act.

Some employer groups suggested that major life activities other than those specifically listed in the statute be deleted, claiming that the EEOC had exceeded its authority by including additional ones. Specific concerns were raised about the inclusion of “interacting with others” on behalf of employers who believed that recognizing this major life activity would limit the ability to discipline employees for misconduct.

Congress expressly provided that the two lists of examples of major life activities are non-exhaustive, and the Commission is authorized to recognize additional examples of major life activities. The final regulations retain “interacting with others” as an example of a major life activity, consistent with the Commission's long-standing position in existing enforcement guidance.

One disability rights group also asked the Commission to delete the long-standing definition of major life activities as those basic activities that most people in the general population “can perform with little or no difficulty” and substitute a lower standard. Upon consideration, we think that, while the ability of most people to perform the

activity is relevant when evaluating whether an individual is substantially limited, it is not relevant to whether the activity in question is a major life activity. Consequently, the final rule, like the statute itself, simply provides examples of activities that qualify as “major life activities” because of their relative importance.

Finally, some commenters asked that the final rule state explicitly that the standard from
Toyota Motor Mfg., Ky., Inc.
v.
Williams,
534 U.S. 184 (2002), for determining whether an activity qualifies as a major life activity—that it be of “central importance to most people's daily lives”—no longer applies after the ADA Amendments Act. The Commission agrees and has added language to this effect in the final regulations.

We have provided this clarification in the regulations, and, in the appendix, we explain what this means with respect to, for example, activities such as lifting and performing manual tasks. The final regulations also state that in determining other examples of major life activities, the term “major” shall not be interpreted strictly to create a demanding standard for disability, and provide that whether an activity is a “major life activity” is not determined by reference to whether it is of “central importance to daily life.”

Section 1630.2(j): Substantially Limits

Overview

Although much of § 1630.2(j) of the final regulations is substantively the same as § 1630.2(j) of the NPRM, the structure of the section is somewhat different. Many of the examples that were in the text of the proposed rule have been relocated to the appendix. Section 1630.2(j)(1) in the final regulations lists nine “rules of construction” that are based on the statute itself and are essentially consistent with the content of §§ 1630.2(j)(1) through (4) of the NPRM. Section 1630.2(j)(2) in the final regulations makes clear that the question of whether an individual is substantially limited in a major life activity is not relevant to coverage under the “regarded as” prong. Section 1630.2(j)(3)(ii) in the final regulations notes that some impairments will, given their inherent nature, virtually always be found to impose a substantial limitation on a major life activity. Therefore, with respect to these types of impairments, the necessary individualized assessment should be particularly simple and straightforward. In addition, § 1630.2(j)(3)(iii) includes examples of impairments that should easily be found to substantially limit a major life activity. These are the same impairments that were included as examples in § 1630.2(j)(5) of the NPRM. In response to comments (discussed below), § 1630.2(j)(4) discusses the concepts of “condition, manner, or duration” that may be useful in evaluating whether an individual is substantially limited in a major life activity in some cases. Section 1630.2(j)(5) in the final regulations offers examples of mitigating measures, and § 1630.2(j)(6) contains the definition of “ordinary eyeglasses or contact lenses.” The discussion of how to determine whether someone is substantially limited in working in those rare cases where this may be at issue now appears in the appendix rather than the regulations, and has been revised as explained below. Finally, NPRM § 1630.2(j)(6), describing certain impairments that may or may not meet the definition of “substantially limits,” and NPRM § 1630.2(j)(8), describing certain impairments that usually will not meet the definition of “substantially limits,” have been deleted in favor of an affirmative statement in both the final regulations and the appendix that not every impairment will constitute a disability within the meaning of § 1630.2(j) (defining “substantially limits”).

Meaning of “Substantially Limits”

Many commenters asked that the Commission more affirmatively define “substantially limits.” Suggestions for further definitions of “substantial” included, among others, “ample,” “considerable,” “more than moderately restricts,” “discernable degree of difficulty,” “makes achievement of the activity difficult,” and “causes a material difference from the ordinary processes by which most people in the general population perform the major life activity.” The Commission has not added terms to quantify “substantially limits” in the final regulations. We believe this is consistent with Congress's express rejection of such an approach in the statute, which instead simply indicates that “substantially limits” is a lower threshold than “prevents” or “severely or significantly restricts,” as prior Supreme Court decisions and the EEOC regulations had defined the term. The Commission ultimately concluded that a new definition would inexorably lead to greater focus and intensity of attention on the threshold issue of coverage than intended by Congress. Therefore, following Congress's approach, the final regulations provide greater clarity and guidance by providing nine rules of construction that must be applied in determining whether an impairment substantially limits (or substantially limited) a major life activity. These rules are based on the provisions in the Amendments Act, and will guide interpretation of the term “substantially limits.”

Comparison to “Most People”

The regulations say that in determining whether an individual has a substantially limiting impairment, the individual's ability to perform a major life activity should be compared to that of “most people in the general population.” Both employer groups and organizations writing on behalf of individuals with disabilities said that the concept of “intra-individual” differences (disparities between an individual's aptitude and expected achievement versus the individual's actual achievement) that appears in the discussion of learning disabilities in the NPRM's appendix is inconsistent with the rule that comparison of an individual's limitations is always made by reference to most people. However, the Commission also received some comments from disability groups requesting that, in the assessment of whether an individual is substantially limited, the regulations allow for comparisons between an individual's experiences with and without an impairment, and comparisons between an individual and her peers—in addition to comparisons of the individual to “most people.”

The Commission agrees that the reference to “intra-individual” differences, without further explanation, may be misconstrued as at odds with the agency's view that comparisons are always made between an individual and most people. Therefore, the Commission has added language to the discussion of learning disabilities in the appendix, in § 1630.2(j)(1)(v), clarifying that although learning disabilities may be diagnosed in terms of the difference between an individual's aptitude and actual versus expected achievement, a comparison to “most people” can nevertheless be made. Moreover, the appendix provides examples of ameliorative effects of mitigating measures that will be disregarded in making this comparison, and notes legislative history rejecting the assumption that an individual who has performed well academically cannot be substantially limited in activities such as learning, reading, writing, thinking, or speaking.

Relevance of Duration of an Impairment's Limitations in Assessing “Substantially Limits”

Many commenters expressed their view that the NPRM failed to clarify, or created confusion regarding, how long an impairment's limitation(s) must last in order for the impairment to be considered substantially limiting. Some thought the Commission was saying that impairments that are “transitory and minor” under the third prong can nevertheless be covered under the first or second prong of the definition of “disability.” A few comments suggested that the Commission adopt a minimum duration of six months for an impairment to be considered substantially limiting, but more commenters simply wanted the Commission to specify whether, and if so what, duration is necessary to establish a substantial limitation.

In enacting the ADA Amendments Act, Congress statutorily defined “transitory” for purposes of the “transitory and minor” exception to newly-defined “regarded as” coverage as “an impairment with an actual or expected duration of 6 months or less,” but did not include that limitation with respect to the first or second prong in the statute. 42 U.S.C. 12102(3)(B). Moreover, prior to the Amendments Act, it had been the Commission's long-standing position that if an impairment substantially limits, is expected to substantially limit, or previously substantially limited a major life activity for at least several months, it could be a disability under § 1630.2(g)(1) or a record of a disability under § 1630.2(g)(2).
See, e.g., EEOC Compliance Manual Section 902, “Definition of the Term Disability,”
§ 902(4)(d) (originally issued in 1995),
http://www.eeoc.gov/policy/docs/902cm.html; EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities
(1997),
http://www.eeoc.gov/policy/docs/psych.html.
A six-month durational requirement would represent a more stringent standard than the EEOC had previously required, not the lower standard Congress sought to bring about through enactment of the ADA Amendments Act. Therefore, the Commission declines to provide for a six-month durational minimum for showing disability under the first prong or past history of a disability under the second prong.

Additionally, the Commission has not in the final regulations specified any specific minimum duration that an impairment's effects must last in order to be deemed substantially limiting. This accurately reflects the intent of the ADA Amendments Act, as conveyed in the joint statement submitted by co-sponsors Hoyer and Sensenbrenner. That statement explains that the duration of an impairment is only one factor in determining whether the impairment substantially limits a major life activity, and impairments that last only a short period of time may be covered if sufficiently severe.
See
Joint Hoyer-Sensenbrenner Statement on the Origins of the ADA Restoration Act of 2008, H.R. 3195 at 5.

Mitigating Measures

The final regulations retain, as one of the nine rules of construction, the statutory requirement that mitigating measures, other than ordinary eyeglasses or contact lenses, must not be considered in determining whether an individual has a disability. Several organizations representing persons with disabilities suggested adding more examples of mitigating measures, including: job coaches, service animals, personal assistants, psychotherapy and other “human-mediated” treatments, and some specific devices used by persons who have hearing and/or vision impairments.

In the final regulations, the Commission has added psychotherapy, behavioral therapy, and physical therapy. In the appendix, the Commission has explained why other suggested examples were not included, noting first that the list is non-exhaustive. Some suggested additional examples of mitigating measures are also forms of reasonable accommodation, such as the right to use a service animal or job coach in the workplace. The Commission emphasizes that its decision not to list certain mitigating measures does not create any inference that individuals who use these measures would not meet the definition of “disability.” For example, as the appendix points out, someone who uses a service animal will still be able to demonstrate a substantial limitation in major life activities such as
see
ing, hearing, walking, or performing manual tasks (depending on the reason the service animal is used).

Several employer groups asked the Commission to identify legal consequences that follow from an individual's failure to use mitigating measures that would alleviate the effects of an impairment. For example, some commenters suggested that such individuals would not be entitled to reasonable accommodation. The Commission has included a statement in the appendix pointing out that the determination of whether or not an individual's impairment substantially limits a major life activity is unaffected by whether the individual chooses to forgo mitigating measures. For individuals who do not use a mitigating measure (including, for example, medication or reasonable accommodation that could alleviate the effects of an impairment), the availability of such measures has no bearing on whether the impairment substantially limits a major life activity. The limitations imposed by the impairment on the individual, and any negative (non-ameliorative) effects of mitigating measures used, determine whether an impairment is substantially limiting. The origin of the impairment, whether its effects can be mitigated, and any ameliorative effects of mitigating measures in fact used may not be considered in determining if the impairment is substantially limiting. However, the use or non-use of mitigating measures, and any consequences thereof, including any ameliorative and non-ameliorative effects, may be relevant in determining whether the individual is qualified or poses a direct threat to safety.

Commenters also asked for a clear statement regarding whether the non-ameliorative effects of mitigating measures may be considered in determining whether an impairment is substantially limiting. Some also asked for guidance regarding whether the positive and negative effects of mitigating measures can be taken into account when determining whether an individual needs a reasonable accommodation.

The final regulations affirmatively state that non-ameliorative effects may be considered in determining whether an impairment is substantially limiting. The appendix clarifies, however, that in many instances it will not be necessary to consider the non-ameliorative effects of mitigating measures to determine that an impairment is substantially limiting. For example, whether diabetes is substantially limiting will most often be analyzed by considering its effects on endocrine functions in the absence of mitigating measures such as medications or insulin, rather than by considering the measures someone must undertake to keep the condition under control (such as frequent blood sugar and insulin monitoring and rigid adherence to dietary restrictions). Likewise, whether someone with kidney disease has a disability will generally be assessed by considering limitations on kidney and bladder functions that would occur without dialysis rather than by reference to the burdens that dialysis treatment imposes. The

appendix also states that both the ameliorative and non-ameliorative effects of mitigating measures may be relevant in deciding non-coverage issues, such as whether someone is qualified, needs a reasonable accommodation, or poses a direct threat.

Some commenters also asked for a more precise definition than the statutory definition of the term “ordinary eyeglasses or contact lenses.” For example, one commenter proposed that “fully corrected” means visual acuity of 20/20. Another commenter representing human resources professionals from large employers suggested a rule that any glasses that can be obtained from a “walk-in retail eye clinic” would be considered ordinary eyeglasses or contact lenses, including bi-focal and multi-focal lenses. An organization representing individuals who are blind or have vision impairments wanted us to say that glasses that enhance or augment a visual image but that may resemble ordinary eyeglasses should not be considered when determining whether someone is substantially limited in
see
ing.

The final regulations do not adopt any of these approaches. The Commission believes that the NPRM was clear that the distinction between “ordinary eyeglasses or contact lenses” on the one hand and “low vision devices” on the other is how they function, not how they look or where they were purchased. Whether lenses fully correct visual acuity or eliminate refractive error is best determined on the basis of current and objective medical evidence. The Commission emphasizes, however, that even if such evidence indicates that visual acuity is fully corrected or that refractive error is eliminated, this means only that the effect of the eyeglasses or contact lenses shall be considered in determining whether the individual is substantially limited in
see
ing, not that the individual is automatically excluded from the law's protection.

Numerous comments were made on the proposed inclusion of surgical interventions as mitigating measures. Many asked the Commission to delete the reference to surgical interventions entirely; others wanted us to delete the qualification that surgical interventions that permanently eliminate an impairment are not considered mitigating measures. Some comments proposed language that would exclude from mitigating measures those surgical interventions that “substantially correct” an impairment. Some comments endorsed the definition as written, but suggested we provide examples of surgical interventions that would permanently eliminate an impairment.

The Commission has eliminated “surgical interventions, except for those that permanently eliminate an impairment” as an example of a mitigating measure in the regulation, given the confusion evidenced in the comments about how this example would apply. Determinations about whether surgical interventions should be taken into consideration when assessing whether an individual has a disability are better assessed on a case-by-case basis.

Finally, some commenters asked the Commission to address generally what type of evidence would be sufficient to establish whether an impairment would be substantially limiting without the ameliorative effects of a mitigating measure that the individual uses. In response to such comments, the Commission has added to the appendix a statement that such evidence could include evidence of limitations that a person experienced prior to using a mitigating measure, evidence concerning the expected course of a particular disorder absent mitigating measures, or readily available and reliable information of other types.

Impairments That Are Episodic or in Remission

One commenter suggested that the regulatory provision on impairments that are “episodic or in remission” should be clarified to eliminate from coverage progressive impairments such as Parkinson's Disease on the ground that they would not be disabilities in the “early stages.” The Commission declines to make this revision, recognizing that because “major bodily functions” are themselves “major life activities,” Parkinson's Disease even in the “early stages” can substantially limit major life activities, such as brain or neurological functions. Some employer groups also asked the Commission to provide further guidance on distinguishing between episodic conditions and those that may, but do not necessarily, become episodic, as indicated by subsequent “flare ups.” As the Commission has indicated in the regulations and appendix provisions on mitigating measures, these questions may in some cases be resolved by looking at evidence such as limitations experienced prior to the use of the mitigating measure or the expected course of a disorder absent mitigating measures. However, recognizing that there may be various ways that an impairment may be shown to be episodic, we decline to address such evidentiary issues with any greater specificity in the rulemaking.

Predictable Assessments

Section 1630.2(j)(5) of the NPRM provided examples of impairments that would “consistently meet the definition of disability” in light of the statutory changes to the definition of “substantially limits.” Arguing that § 1630.2(j)(5) of the NPRM created a “per se list” of disabilities, many commenters, particularly representatives of employers and employer organizations, asked for the section's deletion, so that all impairments would be subject to the same individualized assessment. Equally strong support for this section was expressed by organizations representing individuals with disabilities, some of whom suggested that impairments such as learning disabilities, AD/HD, panic and anxiety disorder, hearing impairments requiring use of a hearing aid or cochlear implant, mobility impairments requiring the use of canes, crutches, or walkers, and multiple chemical sensitivity be added to the list of examples in NPRM § 1630.2(j)(5). Many of the commenters who expressed support for this section also asked that NPRM § 1630.2(j)(6) (concerning impairments that may be substantially limiting for some individuals but not for others) be deleted, as it
see
med to suggest that these impairments were of lesser significance than those in NPRM § (j)(5).

In response to these concerns, the Commission has revised this portion of the regulations to make clear that the analysis of whether the types of impairments discussed in this section (now § 1630.2(j)(3)) substantially limit a major life activity does not depart from the hallmark individualized assessment. Rather, applying the various principles and rules of construction concerning the definition of disability, the individualized assessment of some types of impairments will, in virtually all cases, result in a finding that the impairment substantially limits a major life activity, and thus the necessary individualized assessment of these types of impairments should be particularly simple and straightforward. The regulations also provide examples of impairments that should easily be found to substantially limit a major life activity.

The Commission has also deleted § 1630.2(j)(6) that appeared in the NPRM. However, the Commission did not agree with those commenters who thought it was necessary to include in § 1630.2(j)(3) of the final regulations all the impairments that were the subject of

examples in NPRM § 1630.2(j)(6), or that other impairments not previously mentioned in either section should be included in (j)(3). The Commission has therefore declined to list additional impairments in § 1630.2(j)(3) of the final regulations. The regulations as written permit courts to conclude that any of the impairments mentioned in § 1630.2(j)(6) of the NPRM or other impairments “substantially limit” a major life activity.

Section 1630.2(j)(8) of the NPRM provided examples of impairments that “are usually not disabilities.” Some commenters asked for clarity concerning whether, and under what circumstances, any of the impairments included in the examples might constitute disabilities under the first or second prong, or asked that the section title be revised by replacing “usually” with “consistently.” Other commenters asked whether the listed impairments would be considered “transitory and minor” for purposes of the “regarded as” definition, or wanted clarification that the listed impairments were not necessarily “transitory and minor” in all instances. A few organizations recommended deletion of certain impairments from the list of examples, such as a broken bone that is expected to heal completely and a sprained joint. In the final regulations, the Commission deleted this section, again due to the confusion it presented.

Condition, Manner, or Duration

Comments from both employers and groups writing on behalf of individuals with disabilities proposed that the Commission continue to use the terms “condition, manner, or duration,” found in the appendix accompanying EEOC's 1991 ADA regulations, as part of the definition of “substantially limits.” Many employer groups seemed to think the concepts were relevant in all cases; disability groups generally thought they could be relevant in some cases, but do not need to be considered rigidly in all instances.

In response, the Commission has inserted the terms “condition, manner, or duration” as concepts that may be relevant in certain cases to show how an individual is substantially limited, although the concepts may often be unnecessary to conduct the analysis of whether an impairment “substantially limits” a major life activity. The Commission has also included language to illustrate what these terms mean, borrowing from the examples in § 1630.2(j)(6) of the NPRM, which has been deleted from the final regulations. For example, “condition, manner, or duration” might mean the difficulty or effort required to perform a major life activity, pain experienced when performing a major life activity, the length of time a major life activity can be performed, or the way that an impairment affects the operation of a major bodily function.

Substantially Limited in Working

The proposed rule had replaced the concepts of a “class” or “broad range” of jobs from the 1991 regulations defining substantial limitation in working with the concept of a “type of work.” A number of commenters asked the Commission to restore the concepts of a class or broad range of jobs. Many other comments supported the “type of work” approach taken in the NPRM. Some supporters of the “type of work” approach sought additional examples of types of work (e.g., jobs requiring working around chemical fumes and dust, or jobs that require keyboarding or typing), and requested that certain statements in the appendix be moved into the regulations.

In issuing the final regulations, the Commission has moved the discussion of how to analyze the major life activity of working to the appendix, since no other major life activity is singled out in the regulations for elaboration. Rather than attempting to articulate a new “type of work” standard that may cause unnecessary confusion, the Commission has retained the original part 1630 “class or broad range of jobs” formulation in the appendix, although we explain how this standard must be applied differently than it was prior to the Amendments Act. We also provide a more streamlined discussion and examples of the standard to comply with Congress's exhortation in the Amendments Act to favor broad coverage and disfavor extensive analysis (Section 2(b)(5) (Findings and Purposes)).

Section 1630.2(k): Record of a Disability

Some commenters asked the Commission to revise this section to state that a “record” simply means a past history of a substantially limiting impairment, not necessarily that the past history has to be established by a specific document. Although some commenters sought deletion of the statement (in §§ 1630.2(o) and 1630.9) that individuals covered under the “record of” prong may get reasonable accommodations, others agreed that the language of the Amendments Act is consistent with the Commission's long-held position and wanted examples of when someone with a history of a substantially limiting impairment would need accommodation. Some comments recommended that the Commission make the point that a person with cancer (identified in one of the NPRM examples) could also be covered under the first prong.

The final regulations streamline this section by moving the examples of “record of” disabilities to the appendix. The Commission has also added a paragraph to this section to make clear that reasonable accommodations may be required for individuals with a record of an impairment that substantially limits a major life activity, and has provided an example of when a reasonable accommodation may be required. The Commission has not added language to state explicitly that the past history of an impairment need not be reflected in a specific document; we believe that this is clear in current law, and this point is reflected in the appendix.

Section 1630.2(l): Regarded As

Many comments revealed confusion as to both the new statutory and proposed regulatory definition of the “regarded as” prong in general, and the “transitory and minor” exception in particular. Other comments simply requested clarification of the “transitory and minor” exception. The final regulations provide further clarification and explanation of the scope of “regarded as” coverage.

The final regulations and appendix make clear that even if coverage is established under the “regarded as” prong, the individual must still establish the other elements of the claim (e.g., that he or she is qualified) and the employer may raise any available defenses. In other words, a finding of “regarded as” coverage is not itself a finding of liability.

The final regulations and appendix also explain that the fact that the “regarded as” prong requires proof of causation in order to show that a person is covered does not mean that proving a claim based on “regarded as” coverage is complex. As noted in the appendix, while a person must show, both for coverage under the “regarded as” prong and for ultimate liability, that he or she was subjected to a prohibited action because of an actual or perceived impairment, this showing need only be made once. Thus, a person proceeding under the “regarded as” prong may demonstrate a violation of the ADA by meeting the burden of proving that: (1) He or she has an impairment or was perceived by a covered entity to have an impairment, and (2) the covered entity discriminated against him or her because of the impairment in violation of the statute. Finally, the final regulations make clear that an employer

may show that an impairment is “transitory and minor” as a defense to “regarded as” coverage. 29 CFR 1630.15(f).

The final regulations and appendix, at § 1630.2(j), also make clear that the concepts of “major life activities” and “substantially limits” (relevant when evaluating coverage under the first or second prong of the definition of “disability”) are not relevant in evaluating coverage under the “regarded as” prong. Thus, in order to have regarded an individual as having a disability, a covered entity need not have considered whether a major life activity was substantially limited, and an individual claiming to have been regarded as disabled need not demonstrate that he or she is substantially limited in a major life activity.

Concerning specific issues with which commenters disagreed, some criticized examples of impairments that the Commission said would be considered transitory and minor—specifically, a broken leg that heals normally and a sprained wrist that limits someone's ability to type for three weeks. These commenters claimed that these impairments, though transitory, are not minor. Consistent with its effort to streamline the text of the final rule, the Commission has deleted examples that appeared in the NPRM, illustrating how the “transitory and minor” exception applies. However, the appendix to § 1630.2(l) as well as the defense as set forth in § 1630.15(f) include examples involving an employer that takes a prohibited action against an employee with bipolar disorder that the employer claims it believed was transitory and minor, and an employer that takes a prohibited action against an individual with a transitory and minor hand wound that the employer believes is symptomatic of HIV infection. These examples are intended to illustrate the point that whether an actual or perceived impairment is transitory and minor is to be assessed objectively.

In response to a specific request in the preamble to the NPRM, the Commission received many comments about the position in the proposed rule that actions taken because of an impairment's symptoms or because of the use of mitigating measures constitute actions taken because of an impairment under the “regarded as” prong. Individuals with disabilities and organizations representing them for the most part endorsed the position, noting that the symptoms of, and mitigating measures used for, an impairment are part and parcel of the impairment itself, and that this provision is necessary to prevent employers from evading “regarded as” coverage by asserting that the challenged employment action was taken because of the symptom or medication, not the impairment, even when it knew of the connection between the two. Others asked the Commission to clarify that this interpretation applied even where the employer had no knowledge of the connection between the impairment and the symptom or mitigating measure. However, employers and organizations representing employers asked that this language be deleted in its entirety. They were particularly concerned that an employer could be held liable under the ADA for disciplining an employee for violating a workplace rule, where the violation resulted from an underlying impairment of which the employer was unaware.

In light of the complexity of this issue, the Commission believes that it requires a more comprehensive treatment than is possible in this regulation. Therefore, the final regulations do not explicitly address the issue of discrimination based on symptoms or mitigating measures under the “regarded as” prong. No negative inference concerning the merits of this issue should be drawn from this deletion. The Commission's existing position, as expressed in its policy guidance, court filings, and other regulatory and sub-regulatory documents, remains unchanged.

Finally, because the new law makes clear that an employer regards an individual as disabled if it takes a prohibited action against the individual because of an actual or perceived impairment that was not “transitory and minor,” whether or not myths, fears, or stereotypes about disability motivated the employer's decision, the Commission has deleted certain language about myths, fears, and stereotypes from the 1991 version of this section of the appendix that might otherwise be misconstrued when applying the new ADA Amendments Act “regarded as” standard.

Issues Concerning Evidence of Disability

The Commission also received comments from both employer groups and organizations writing on behalf of people with disabilities asking that the regulations address what kind of information an employer may request about the nature of an impairment (e.g., during the interactive process in response to a request for reasonable accommodation), and the amount and type of evidence that would be sufficient in litigation to establish the existence of a disability. Some employer groups, for example, asked the Commission to emphasize that a person requesting a reasonable accommodation must participate in the interactive process by providing appropriate documentation where the disability and need for accommodation are not obvious or already known. Organizations writing on behalf of persons with disabilities asked the Commission to state in the regulations that a diagnosis of one of the impairments in NPRM § 1630.2(j)(5) is sufficient to establish the existence of a disability; that the Commission should emphasize, even more so than in the NPRM, that proving disability is not an onerous burden; that in many instances the question of whether a plaintiff in litigation has a disability should be the subject of stipulation by the parties; and that an impairment's effects on major bodily functions should be considered before its effects on other major life activities in determining whether an impairment substantially limits a major life activity. Both employer groups and organizations submitting comments on behalf of individuals with disabilities asked the Commission to clarify the statement in the NPRM that objective scientific and medical evidence can be used to establish the existence of a disability.

The Commission believes that most of these proposed changes regarding evidentiary matters are either unnecessary or not appropriate to address in the regulations. For example, the Commission has stated repeatedly in numerous policy documents and technical assistance publications that individuals requesting accommodation must provide certain supporting medical information if the employer requests it, and that the employer is permitted to do so if the disability and/or need for accommodation are not obvious or already known. The ADA Amendments Act does not alter this requirement. The Commission also does not think it appropriate to comment in the regulations or the appendix on how ADA litigation should be conducted, such as whether parties should stipulate to certain facts or whether use of certain major life activities by litigants or courts should be preferred.

However, based on the comments received, the Commission has concluded that clarification of language in the NPRM regarding use of scientific and medical evidence is warranted. The final regulations, at § 1630.2(j)(1)(v), state that the comparison of an individual's performance of a major life activity to the performance of the same major life activity by most people in the

general population usually will not require scientific, medical, or statistical analysis. However, the final regulations also state that this provision is not intended to prohibit the presentation of scientific, medical, or statistical evidence to make such a comparison where appropriate. In addition, the appendix discusses evidence that may show that an impairment would be substantially limiting in the absence of the ameliorative effects of mitigating measures.

Section 1630.2(m): Definition of “Qualified”

The final regulations and accompanying appendix make slight changes to this section to eliminate use of the term “qualified individual with a disability,” consistent with the ADA Amendments Act's elimination of that term throughout most of title I of the ADA.

Section 1630.2(o): Reasonable Accommodation

The Commission has added a new provision (o)(4) in § 1630.2(o) of the final regulations, providing that a covered entity is not required to provide a reasonable accommodation to an individual who meets the definition of disability solely under the “regarded as” prong (§ 1630.2(g)(1)(iii)). The Commission has also made changes to this section to eliminate use of the term “qualified individual with a disability,” consistent with the ADA Amendments Act's elimination of that term throughout most of title I of the ADA.

Section 1630.4: Discrimination Prohibited

The Commission has reorganized § 1630.4 of the final regulations, adding a new provision in § 1630.4(b) to provide, as stated in the Amendments Act, that 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.

Section 1630.9: Not Making Reasonable Accommodation

The final regulations include a technical revision to § 1630.9(c) to conform citations therein to the amended ADA. In addition, a new § 1630.9(e) has been added stating again that a covered entity is not required to provide a reasonable accommodation to an individual who meets the definition of disability solely under the “regarded as” prong (§ 1630.2(g)(1)(iii)). In addition, the appendix to § 1630.9 is amended to revise references to the term “qualified individual with a disability” in order to conform to the statutory changes made by the Amendments Act.

Section 1630.10: Qualification Standards, Tests, and Other Selection Criteria.

The final regulations include a new § 1630.10(b) explaining the amended ADA provision regarding qualification standards and tests related to uncorrected vision.

Section 1630.15: Defenses

The final regulations include a new § 1630.15(f), and accompanying appendix section, explaining the “transitory and minor” defense to a charge of discrimination where coverage would be shown solely under the “regarded as” prong of the definition.

Section 1630.16: Specific Activities Permitted

The final regulations include terminology revisions to §§ 1630.16(a) and (f) to conform to the statutory deletion of the term “qualified individual with a disability” in most parts of title I.

Regulatory Procedures

Final Regulatory Impact Analysis

Executive Orders 12866 and 13563

The final rule, which amends 29 CFR Part 1630 and the accompanying interpretive guidance, has been drafted and reviewed in accordance with EO 12866, 58 FR 51735 (Sept. 30, 1993), Principles of Regulations, and EO 13563, 76 FR 3821, (Jan. 21, 2011), Improving Regulation and Regulatory Review. The rule is necessary to bring the Commission's prior regulations into compliance with the ADA Amendments Act of 2008, which became effective January 1, 2009, and explicitly invalidated certain provisions of the prior regulations. The new final regulations and appendix are intended to add to the predictability and consistency of judicial interpretations and executive enforcement of the ADA as now amended by Congress.

The final regulatory impact analysis estimates the annual costs of the rule to be in the range of $60 million to $183 million, and estimates that the benefits will be significant. While those benefits cannot be fully quantified and monetized at this time, the Commission concludes that consistent with EO 13563, the benefits (quantitative and qualitative) will justify the costs. Also consistent with EO 13563, we have attempted to “use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Commission notes, however, that the rule and the underlying statute create many important benefits that, in the words of EO 13563, stem from “values that are difficult or impossible to quantify.” Consistent with EO 13563, in addition to considering the rule's quantitative effects, the Commission has considered the rule's qualitative effects. Some of the benefits of the ADA Amendments Act (ADAAA or Amendments Act) and this final rule are monetary in nature, and likely involve increased productivity, but cannot be quantified at this time.

Other benefits, consistent with the Act, involve values such as (in the words of EO 13563) “equity, human dignity, fairness, and distributive impacts.” In its statement of findings in the Act, Congress emphasized that “in enacting the ADA, Congress recognized that physical and mental disabilities in no way diminish a person's right to fully participate in all aspects of society, but that people with physical or mental disabilities are frequently precluded from doing so because of prejudice, antiquated attitudes, or the failure to remove societal and institutional barriers.” One of the stated purposes of the ADA Amendments Act is “to carry out the ADA's objectives of providing `a clear and comprehensive national mandate for the elimination of discrimination' and `clear, strong, consistent, enforceable standards addressing discrimination' by reinstating a broad scope of protection under the ADA.” ADAAA Section 2(a)(1) and 2(b)(1). This rule implements that purpose by establishing standards for eliminating disability-based discrimination in the workplace. It also promotes inclusion and fairness in the workplace; combats second-class citizenship of individuals with disabilities; avoids humiliation and stigma; and promotes human dignity by enabling qualified individuals to participate in the workforce.

Introduction

I. Estimated Costs

A. Estimate of Increased Number of Individuals Whose Coverage Is Clarified through the ADAAA and the Final Regulations

(1) Summary of Preliminary Analysis

(2) Comments on Preliminary Analysis

(3) Revised Analysis

(a) Number of Individuals Whose Coverage Is Clarified

(b) Number of Individuals Whose Coverage Is Clarified and Who Are Participating in the Labor Force

B. Estimated Increase in Reasonable Accommodation Requests and Costs Attributable to the ADAAA and the Final Regulations

(1) Summary of Preliminary Analysis

(2) Comments on Preliminary Analysis

(3) Revised Analysis

(a) Estimated Number of New Accommodation Requests

(b) Factors Bearing on Reasonable Accommodation Costs

(c) Calculation of Mean Costs of Accommodations Derived From Studies

(d) Accommodation Cost Scenarios

C. Estimated Increase in Administrative and Legal Costs Attributable to the ADAAA and the Final Regulations

(1) Summary of Preliminary Analysis

(2) Comments on Preliminary Analysis

(3) Revised Analysis of Administrative Costs

(4) Analysis of Legal Costs

II. Estimated Benefits

A. Benefits of Accommodations Attributable to the ADAAA and the Final Regulations

(1) Summary of Preliminary Analysis

(2) Comments on Preliminary Analysis

(3)
Conclusions Regarding Benefits of Accommodations Attributable to the ADAAA and the Final Regulations

B. Other Benefits Attributable to the ADAAA and the Final Regulations

(1)
Efficiencies in Litigation

(2)
Fuller Employment

(3)
Non-discrimination and Other Intrinsic Benefits

Conclusion

Introduction

In enacting the ADA Amendments Act, Congress explicitly stated its expectation that the EEOC would amend its ADA regulations to reflect the changes made by the statute. These changes necessarily extend as well to the Interpretive Guidance (also known as the Appendix) that was published at the same time as the original ADA regulations and that provides further explanation on how the regulations should be interpreted.

The Amendments Act states that its purpose is “to reinstate a broad scope of protection” by expanding the definition of the term “disability.” Congress found that persons with many types of impairments—including epilepsy, diabetes, HIV infection, cancer, multiple sclerosis, intellectual disabilities (formerly called mental retardation), major depression, and bipolar disorder—had been unable to bring ADA claims because they were found not to meet the ADA's definition of “disability.” Yet, Congress thought that individuals with these and other impairments should be covered and revised the ADA accordingly. Congress explicitly rejected certain Supreme Court interpretations of the term “disability” and a portion of the EEOC regulations that it found had inappropriately narrowed the definition of disability. These amended regulations are necessary to implement fully the requirements of the ADA Amendments Act's broader definition of “disability.”

Our assessment of both the costs and benefits of this rule was necessarily limited by the data that currently exists. Point estimates are not possible at this time. For that reason, and consistent with OMB Circular A-4, we have provided a range of estimates in this assessment.

The preliminary regulatory impact analysis (“preliminary analysis”) set forth in the NPRM reviewed existing research and attempted to estimate the costs and benefits of the proposed rule. More specifically, the preliminary analysis attempted to estimate the costs employers would incur as the result of providing accommodations to more individuals with disabilities in light of the Amendments Act, the prevalence of accommodation already in the workplace, the cost per accommodation, the number of additional accommodations that the Amendments Act would need to generate to reach $100 million in costs in any given year, the administrative costs for firms with at least 150 employees, and the reported benefits of providing reasonable accommodations.

The preliminary analysis concluded that the costs of the proposed rule would very likely be below $100 million, but did not provide estimates of aggregated monetary benefits. Because existing research measuring the relevant costs and benefits is limited, the Commission's NPRM solicited public comment on its data and analysis.

The Commission's final regulatory impact analysis is based on the preliminary assessment but has changed significantly based on comments received during the public comment period on the NPRM as well as the inter-agency comment period on the final regulations under EO 12866.
1

These changes are consistent with the public participation provisions in EO 13563 and reflect the importance of having engaged and informed public participation. The limitations of the preliminary analysis approach are outlined below, and an alternative approach is provided to illustrate the range of benefits and costs.

1
The Commission specifically undertook to provide extensive opportunities for public participation in this rulemaking process. In addition to the more than 600 written comments received during the 60-day public comment period on the NPRM, the EEOC and the U.S. Department of Justice Civil Rights Division during that period also held four “Town Hall Listening Sessions” in Oakland, California on October 26, 2009, in Philadelphia, Pennsylvania on October 30, 2009, in Chicago, Illinois on November 17, 2009, and in New Orleans, Louisiana on November 20, 2009. For each of these sessions, Commissioners offered to be present all day to receive in-person or telephonic comments on any aspect of the NPRM from members of the public on both a pre-registration and walk-in basis. More than 60 individuals and representatives of the business/employer community and the disability advocacy community from across the country offered comments at these four sessions, a number of whom additionally submitted written comments.

These estimates are discussed seriatim in the following sections of this analysis.

I. Estimated Costs

A. Estimate of Increased Number of Individuals Whose Coverage Is Clarified by the ADAAA and the Final Regulations

For those employers that have 15 or more employees and are therefore covered by the proposed regulations, the potential costs of the rule stem from the likelihood that, due to Congress's mandate that the definition of disability be applied in a less restrictive manner, more individuals will qualify for coverage under the portion of the definition of disability that entitles them to request and receive reasonable accommodations.
2

Thus, we first consider the number of individuals whose coverage is clarified by the ADAAA and the final rule as a result of the changes made to the definition of “substantially limits a major life activity.”
3

We then consider how many such individuals are likely to be participating in the labor force.

2
Individuals who are covered under the first two prongs of the definition of disability are entitled to reasonable accommodations, as well as to challenge hiring, promotion, and termination decisions and discriminatory terms and conditions of employment. Individuals covered solely under the third prong of the definition of disability are not entitled to reasonable accommodations. As we noted in the preliminary regulatory impact analysis, the primary costs are likely to derive from increased numbers of accommodations being provided by employers—assuming an accommodation is needed, an employee is qualified, and the accommodation does not pose an undue hardship. No comments challenged that assessment. Thus, while we discuss proposed increases in litigation costs below (which apply to claims brought by individuals covered under any prong of the definition), we focus our attention in this section on those individuals whose coverage is clarified under the first two prongs of the definition of disability.

3
Prior to the ADAAA, individuals with impairments such as cancer, diabetes, epilepsy and HIV infection were sometimes found to be covered under the ADA, and sometimes not, depending on how well they functioned with their impairments, taking into account mitigating measures. Thus, it is not appropriate to say that all such individuals are “newly covered” under the ADA. For that reason, we refer to this group throughout this analysis as a group whose “coverage has been clarified” under the ADAAA.

(1) Summary of Preliminary Analysis

The preliminary regulatory impact analysis relied on a variety of demographic surveys conducted by the U.S. government which are designed to estimate the number of people with disabilities in the labor force. The resulting estimates differ somewhat based on the survey design, the sample size, the age range of the population under study, who is actually being surveyed (the household or the individual), the mode of survey administration, the definition of disability used, and the time-frame used to define employment status.

In attempting to estimate the increased number of individuals whose coverage was clarified by the ADAAA and who might need and request accommodation,
4

the Commission's preliminary impact analysis examined data from the following major population-representative Federal surveys that contain information about people with disabilities and their employment status: the Current Population Survey (CPS), the American Community Survey (ACS), the National Health Interview Survey (NHIS), and the Survey of Income and Program Participation (SIPP). Noting the limitations of this data as applied to estimating the number of individuals affected by the amended ADA, we nevertheless estimated that there were 8,229,000 people with disabilities who were working in 2007, and that between 2.2 million and 3.5 million workers reported that they had disabilities that caused difficulty in working.
5

4
The preliminary analysis focused on individuals whose coverage would be clarified under the ADAAA and who might need and request an accommodation. For purposes of clarity, our final assessment focuses first on the number of individuals whose coverage will be clarified under the ADAAA and who are participating in the labor force. We then move to a separate analysis of how many of those individuals might need and request accommodations.

5
From 2003-07, the ACS included the following question on “Employment Disability” asked of persons ages 15 or older: “Because of a physical, mental, or emotional condition lasting six months or more, does this person have any difficulty in doing any of the following activities: (b) working at a job or business?”
See
“Frequently Asked Questions,” Cornell University Disability Statistics, Online Resource for U.S. Disability Statistics,
http://www.ilr.cornell.edu/edi/disabilitystatisticsfaq.cfm.

Both public comments and comments received during the inter-agency review process under EO 12866 highlighted a variety of limitations in our analysis. Indeed, the alternative that we later present indicates that the figure of 8.2 million people with disabilities used in the preliminary analysis significantly underestimated the number of workers with impairments whose coverage under the law will now be clarified.

The indicator of “disability” used by the ACS, CPS, and NIHS depends on a series of six questions that address functionality, including questions about whether an individual has any of the following: a severe vision or hearing impairment; a condition that substantially limits one or more basic physical activities such as walking, climbing stairs, reaching, lifting, or carrying; a physical, mental, or emotional condition lasting 6 months or more that results in difficulty learning, remembering, or concentrating; or a severe disability that results in difficulty dressing, bathing, getting around inside the home, going outside the home alone to shop or visit a doctor's office, or working at a job or business.

This survey definition clearly captures only a subset of the group of people with disabilities who would be covered under the ADA as amended. For example, among other things:

—With respect to both physical and mental impairments, the survey definition does not account for the addition of the operation of major bodily functions as major life activities under the newly amended law, such as functions of the immune system, normal cell growth, and brain, neurological, and endocrine functions. This makes it especially likely that the survey data is under-inclusive as to individuals with impairments such as HIV infection, epilepsy, cancer, diabetes, and mental impairments whose coverage is now clarified under the ADA.

—Even with respect to major life activities other than major bodily functions, the survey definition covers a narrower range of individuals with mental impairments since it is limited to mental or emotional conditions that result in difficulty learning, remembering, concentrating, or a severe disability resulting in difficulty doing specific self-care activities.

—The survey definition overall reflects an attempt to capture individuals with impairments whose limitations are considered “severe”— a degree of limitation which is no longer required in order for an impairment to be considered substantially limiting under the ADA as amended.

—The survey definition expressly excludes many individuals whose impairments last fewer than 6 months, even though such impairments may substantially limit a major life activity under the ADA prior to and after the ADA Amendments.

—The survey definition is limited to impairments that currently substantially limit a major life activity, and therefore does not capture individuals with a record of a substantially limiting impairment who may still need accommodation arising from that past history.

In the preliminary analysis, we used the number of employed individuals who have functional disabilities (as indicated by the six-question set described above) as a surrogate for the number of individuals with any disability who are working. We then tried to determine the subset of those employed individuals with disabilities whose coverage would be newly clarified as a result of the Amendments Act, acknowledging that some people whose coverage would be potentially clarified by the Amendments Act were probably not included in this baseline.

We declined to use the subset of workers with reported employment related disabilities, because we assumed that some of these individuals would have been covered even under the pre-ADAAA definition of “disability.” Instead, the preliminary analysis examined the CDC's analysis of the Census/SIPP data on prevalence of certain medical conditions in the population of non-institutionalized individuals ages 18-64.
See
“Main cause of disability among civilian non-institutionalized U.S. adults aged 18 years or older with self reported disabilities, estimated affected population and percentages, by sex—United States, 2005,”
http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5816a2.htm
(last visited Mar. 1, 2010). We chose to focus on those impairments in § 1630.2(j)(5) of the NPRM (those impairments that we believed would “consistently” meet the definition of a substantially limiting impairment), since we considered individuals with such impairments to be most likely to request accommodations as a result of the regulations due to a greater degree of certainty that they would be covered. We concluded that this data suggested that 13 percent of civilian non-institutionalized adults with disabilities have the following conditions: Cancer (2.2 percent), cerebral palsy (0.5 percent), diabetes (4.5 percent), epilepsy (0.6 percent), AIDS or AIDS related condition (0.2 percent), “mental or emotional” impairment (4.9 percent).

We assumed in our preliminary analysis that these impairments would occur with the same degree of frequency among employed adults who have functional disabilities as they do among

the population of persons with disabilities generally, and so multiplied 13% times 8,229,000 workers with reported disabilities. We thus estimated that approximately 1,000,000 workers with disabilities had impairments that were more likely to be covered as the result of the ADAAA and the EEOC's regulations.

(2) Comments on Preliminary Analysis

The Commission received a number of public comments from employer associations arguing that our figures underestimated the increase in the number of individuals who would now be covered under the ADAAA, as people with disabilities. One employer association specifically argued that the Commission's preliminary estimate that 13 percent of the workers with work-limitation disabilities would consistently meet the definition of disability under NPRM § 1630.2(j)(5) left out a number of disabilities listed in that section such as autism, multiple sclerosis, and muscular dystrophy. This comment cited Centers for Disease Control (CDC) data that the prevalence rate for autism spectrum disorder is between 2 and 6 per 1,000 individuals, or 89,000 to 267,000 civilian non-institutionalized adults, as well as National Multiple Sclerosis Society data estimating that 400,000 Americans have multiple sclerosis, and Muscular Dystrophy Association statistics that approximately 250,000 Americans have muscular dystrophy. The commenter argued that adding these estimates to the 5.8 million non-institutionalized adults ages 18-64 who have cancer, cerebral palsy, diabetes, epilepsy, AIDS or AIDS related condition, or a mental or emotional impairment would increase the percentage of workers who would consistently meet the definition of disability under proposed section 1630.2(j)(5) to 15.1 percent. The commenter also noted that data from the Families and Work Institute estimates that 21 percent of workers are currently receiving treatment for high blood pressure, 7 percent have diabetes, and 4 percent are being treated for mental health issues. Finally, this commenter pointed out that a number of impairments similar to those listed in NPRM § 1630.2(j)(5), but not explicitly identified in that section, would presumably also meet the expanded definition of disability. Based on these observations, the commenter noted that the percentage of workers with covered disabilities could be 20 to 40 percent.

In contrast, some advocates for people with disabilities urged the Commission to delete any estimates at all of the numbers of persons who may meet the definition of “disability” as amended by the ADA Amendments Act or who may request reasonable accommodations. These groups noted that the broad purposes of the ADA, as compared to the more limited purposes of most existing data collections and the different definitions of “disability” used in those studies, made those estimates so uncertain, conjectural, and anecdotal as to be unhelpful and potentially detrimental to the goals of the ADAAA.

In addition, these advocates disputed the Commission's willingness in the preliminary analysis to allow that there may be an increase in requests for accommodation as a result of the ADAAA or the regulations, and therefore disagreed with the underlying premise of attempting to estimate the number of individuals with disabilities generally or the increase in the number of individuals whose coverage under the ADA would now be clarified. Their argument proceeded as follows: Employers and employees alike have generally been aware since title I of the ADA took effect in 1992 that requested accommodations needed by individuals with disabilities must be provided absent undue hardship, and that notwithstanding court rulings to the contrary, most employers and employees have continued to believe that disabilities include impairments such as those examples set forth in § 1630.2(j)(5) of the NPRM, e.g., epilepsy, depression, post traumatic stress disorder, multiple sclerosis, HIV infection, cerebral palsy, intellectual disabilities, bipolar disorder, missing limbs, and cancer. Therefore, these advocates argued, it is unlikely that individuals with such impairments have been refraining from requesting accommodations up until now, or that their requests for accommodation have been denied because they did not meet the legal definition of disability. This was the practical reality, even if improper denials by employers would have been difficult to remedy in the courts, given the pre-Amendments Act interpretation of the definition of disability.
6

6
These groups also noted that some individuals with covered disabilities will not seek work. Finally, they disputed the utility of the attempt to estimate the number of affected workers on the grounds the ADAAA simply restores the original interpretation of the definition of “disability,” and there is no evidence that state or local laws with equivalent or broader definitions of disability have experienced a significant economic impact.

(3) Revised Analysis

(a) Number of Individuals Whose Coverage Is Clarified and Who Are Participating in the Labor Force

The Commission agrees with the comments made by both employer groups and advocates for people with disabilities that the referenced survey data regarding the numbers of workers with disabilities or with specific impairments—which, as noted in the preliminary analysis, researchers collected for other purposes—has limited relevance to determining the number of workers whose coverage has been clarified by the ADAAA. This conclusion qualifies any use of that data in the preliminary analysis, as well as in this final regulatory impact analysis.

In light of these limitations, we believe the Commission's preliminary analysis significantly underestimated the number of workers with disabilities whose coverage is clarified as a result of the ADAAA and the final regulations. First, we did not account for several impairments actually listed in § 1630.2(j)(3)(iii) of the final regulations, such as autism, multiple sclerosis, and muscular dystrophy. Second, as was pointed out during inter-agency review of the final regulations prior to publication, because the CDC analysis of the Census Data on the number of workers with self-reported disabilities was not derived in the same way as the ACS data, it would be incorrect to assume that CDC data on the prevalence of the impairments in § 1630.2(j)(3)(iii) reflects the frequency of those impairments among the 8,229,000 non-institutionalized workers with disabilities aged 18-64 found by the ACS. Moreover, as discussed below, the figures in the CDC analysis of the Census Data are obviously far lower than reported data on the incidence of these impairments in the population overall.

Therefore, for purposes of this final analysis, informed by both the public comments and comments received during the inter-agency review process under EO 12866, we conclude that the figure of 8.2 million people with disabilities used in the preliminary analysis, and the calculations made with it, significantly underestimated the number of workers with impairments that will now be covered as having a substantially limiting impairment or record thereof under the ADAAA and the final regulations.

Our revised analysis proceeds as follows. In analyzing the available data, we are mindful of the fact that the Amendments Act was designed to make it easier to meet the definition of

disability under the ADA and to expand the universe of people considered to have disabilities. Prior to the Amendments Act, the Supreme Court in
Sutton
v.
United Air Lines, Inc.,
527 U.S. 471 (1999), used the ADA's finding that approximately 43 million Americans had disabilities as part of its reason for concluding that the benefits of mitigating measures (e.g., medication, corrective devices) an individual used had to be taken into account when determining whether a person had a substantially limiting impairment. The Amendments Act rejected this restrictive definition of disability and explicitly removed this finding from the law. It also provided that the ameliorative effects of mitigating measures (except ordinary eyeglasses or contact lenses) were not to be taken into account in determining whether a person's impairment substantially limited a major life activity.

Thus, based on the Amendments Act's rejection of
Sutton
alone—apart from the many other changes it made to the definition of a substantial limitation in a major life activity—we know that the number of people now covered under the ADA as having a substantially limiting impairment or a record thereof should be significantly more than 43 million. (The Court surmised that the 43 million number was derived from a National Council on Disability report,
Toward Independence
(Feb. 1986), available at
http://www.ncd.gov/newsroom/publications/1986/toward.htm
, which in turn was based on Census Bureau data and other studies that used “functional limitation” analyses of whether individuals were limited in performing selected basic activities.)

Under the ADA as amended, the definition of an impairment that substantially limits a major life activity will obviously be broader than captured by prior measures, since “substantial” no longer means “severe” or “significantly restricted,” major life activities now include “major bodily functions,” the ameliorative effects of mitigating measures (other than ordinary eyeglasses or contact lenses) are disregarded, and conditions that are episodic or in remission are substantially limiting if they would be when active. Based on the available data, it is impossible to determine with precision how many individuals have impairments that will meet the current definition of substantially limiting a major life activity or a record thereof. We do know, however, that, at a minimum, this group should easily be concluded to include individuals with the conditions listed in § 1630.2(j)(3)(iii) of the final regulations—including autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, and a variety of mental impairments.

While it is true that, prior to the Amendments Act, many of these individuals were assumed to be covered under the law by their employers, the reality was that large numbers of individuals with these conditions were considered by the courts not to have disabilities, based on an individualized assessment of how well the individuals were managing with their impairments, taking into account mitigating measures. Thus, for purposes of this regulatory assessment, we consider individuals with all of these impairments to be individuals whose coverage has now been clarified by the Amendments Act.

By contrast, we are not counting individuals with certain conditions also listed in § 1630.2(j)(3)(iii) of the final regulations—mobility impairments requiring use of a wheelchair, blindness, deafness, and intellectual disabilities— as individuals whose coverage has now been clarified by the Amendments Act since, notwithstanding some exceptions, courts consistently found such individuals to be covered under the ADA even prior to the Amendments Act.

Thus, we use as a starting point the data reported by government agencies and various organizations on the number of individuals in the United States with autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, and a variety of mental impairments.
7

Adding these admittedly disparate and potentially overlapping numbers (and acknowledging that some of these estimates include children and are not restricted by employment status), we can assume a rough estimate of the number of individuals with these impairments who would be found substantially limited in a major life activity as a result of the Amendments Act, as follows:

7
We note that this approach was used by one of the comments submitted by an employer association.

—Autism—Approximately 1.5 million individuals in the United States are affected by autism.
8

8

See
“What is Autism?”
http://www.autismspeaks.org/whatisit/index.php
(last visited Mar. 1, 2011);
see also
Centers for Disease Control, ”Prevalence of the Autism Spectrum Disorders (ASDs) in Multiple Areas of the United States, 2000 and 2002,” available at
http://www.cdc.gov/ncbddd/autism/documents/AutismCommunityReport.pdf
(various studies regarding prevalence in children).

—Multiple Sclerosis—Approximately 400,000 Americans have multiple sclerosis according to the National Multiple Sclerosis Society.
9

9

See
“Who Gets MS?”
http://www.nationalmssociety.org/about-multiple-sclerosis/what-we-know-about-ms/who-gets-ms/index.aspx
(last visited Mar. 1, 2011).

—Muscular Dystrophy—Approximately 250,000 Americans have muscular dystrophy according to the Muscular Dystrophy Association.
10

10

See
“Answers to Frequently Asked Questions,”
http://www.mda.org/news/080804telethon_basic_info.html
(last visited Mar. 1, 2011).

—Cancer—In 2007, approximately 11,714,000 individuals were living with cancer in the United States.
11

11

See
“Cancer Prevalence: How Many People Have Cancer?”
http://www.cancer.org/cancer/cancerbasics/cancer-prevalence
(last visited Mar. 1, 2011).

—Diabetes—An estimated 18.8 million adults in the United States have diabetes according to the CDC.
12

12

See
“2011 National Diabetes Fact Sheet” (released Jan. 26, 2011),
http://www.diabetes.org/diabetes-basics/diabetes-statistics/
(last visited Mar. 1, 2011).

—Epilepsy—Approximately 3 million Americans
13

(or subtracting approximately 326,000 schoolchildren under 15, about 2.6 million people 15 or over) have epilepsy, according to the Epilepsy Foundation website, and an estimated 2 million people have epilepsy, according to the CDC.

13

See
“Epilepsy and Seizure Statistics,”
http://www.epilepsyfoundation.org/about/statistics.cfm
(last visited Mar. 1, 2011); CDC, Epilepsy “Data and Statistics,”
http://www.cdc.gov/Epilepsy/.

—Cerebral Palsy—Between 1.5 and 2 million children and adults have cerebral palsy in the United States according to the United Cerebral Palsy Research and Educational Foundation.
14

14

See
“Cerebral Palsy Fact Sheet,”
http://www.ucp.org/uploads/cp_fact_sheet.pdf
(last visited Mar. 1, 2011).

—HIV Infection—The CDC estimates that more than 1.1 million Americans are living with HIV infection.
15

15

See
“HIV in the United States,”
http://www.cdc.gov/hiv/topics/surveillance/resources/factsheets/us_overview.htm
(last visited Mar. 1, 2011).

—Mental Disabilities—Approximately 21 million individuals (6% or 1 in 17 Americans) have a serious mental illness according to the National Alliance on Mental Illness website (citing National Institute of Mental Health reports).
16

16
“What is Mental Illness: Mental Illness Facts,”
http://www.nami.org/template.cfm?section=About_Mental_Illness
(last visited Mar. 1, 2011).

Thus, based on this data, the number of individuals with the impairments cited in § 1630.2(j)(3(iii) could be at least 60 million. In addition, we know that people with many other

impairments will virtually always be covered under the amended ADA definition of an impairment that substantially limits a major life activity or record thereof.

We recognize that the above figures on the prevalence of § 1630.2(j)(3)(iii) impairments are over-inclusive as a measure of the potential number of workforce participants with these impairments, since in some instances they include people of all ages and those who are not in the labor force. Therefore, we must also identify how many of these individuals are currently participating in the labor force.

Again, we are faced with significant limitations in the data available to us. The newest data released in January 2011 by the Bureau of Labor Statistics (BLS) estimates that 20 percent of people with disabilities age 16 and older participate in the labor force and, of those, 13.6 percent are considered to be unemployed.
17

But the BLS uses a functional limitation analysis to determine who has a disability which, as we have explained above, is significantly different from the definition of disability under the ADA as amended. Hence, we must assume this percentage is extremely under-inclusive. The BLS data estimates that the labor force participation rate for all civilian non-institutionalized people 16 and older (including people with and without disabilities) is 64 percent. We can thus assume that somewhere between 20 and 64 percent of individuals with impairments identified in § 1630.2(j)(3)(iii) will be participating in the labor force.

17
Participants in the labor force include individuals who currently have a job or are actively looking for one. U.S. Department of Labor, Office of Disability Employment Policy, Disability Employment Statistics Q&A,
http://www.dol.gov/odep/categories/research/bls.htm.

Using the 60 million figure, if we assume 20% of individuals with impairments identified in § 1630.2(j)(3)(iii) of the final regulations are participating in the labor force, then, considering those impairments alone, approximately 12 million individuals whose coverage is now clarified under the ADA are in the labor force (20% times 60 million). If we assume 64% of individuals with these disabilities are in the labor force, then the number of labor force participants whose coverage is clarified under the ADA is approximately 38.4 million.

B. Estimated Increase in Reasonable Accommodation Requests and Costs Attributable to the ADAAA and the Final Regulations

(1) Summary of Preliminary Analysis

As noted above, our preliminary analysis had concluded there would be an additional one million people with disabilities covered under the ADA, as amended. The preliminary analysis then attempted to estimate the subset of these million workers who would actually need reasonable accommodations, relying on a study by 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). According to the Zwerling et. al study, 16% of employees with impairments or functional limitations surveyed said they need one of 17 listed accommodations. We assumed, therefore, using the 16% taken from the Zwerling study, that 16% of the one million workers whom we identified would also need accommodations, and that the resulting 160,000 requests would occur over a period of five years.

With regard to the potential costs of accommodations, the preliminary analysis set forth a review of the data from a series of studies providing a wide range of estimates of the mean and median costs of reasonable accommodation. The means cited in the data ranged from as low as $45 to as high as $1,434, based on a variety of studies done by academic and private researchers as well as the Job Accommodation Network (JAN). The $45 mean direct cost of accommodation was reported in a study (Helen Schartz
et al., Workplace Accommodations: Evidence-Based Outcomes
27 Work 345 (2006)) examining the costs and benefits of providing reasonable accommodations, using data from an examination of costs at a major retailer from 1978 to 1997 (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)). The $1,434 mean cost of accommodation cited in the preliminary analysis was derived from data reviewed in JAN's January 2009 issue of its periodically updated study entitled “Workplace Accommodations: Low Cost, High Impact,” which used 2008 data. The most recent JAN study, issued September 1, 2010, reported a mean accommodation cost of $1,183, based on 2009 data.

Using estimates of both the mean and median cost of accommodations, the preliminary analysis estimated that the ADA Amendments Act and these regulations would result in increased costs of reasonable accommodation of from $19,000,000 to $38,000,000 annually.

(2) Comments on Preliminary Analysis

The Commission received a number of public comments from employer associations arguing that because we had underestimated the incremental increase in the number of individuals with disabilities, we had also necessarily underestimated the number of additional requests for accommodation that could be attributable to the Amendments Act and the final regulations. Thus, one commenter recommended using a figure of 20% rather than 13% to represent the number of individuals with just those impairments identified in NPRM § 1630.2(j)(5) and then assumed that the percentage of those individuals who would request an accommodation would be 49%. That commenter thus concluded that a total of 576,000 individuals covered under § 1630.2(j)(5) would request a reasonable accommodation. This commenter also noted that even this figure would likely be too low because workers may move from job to job and renew accommodation requests, or a worker might need more than one accommodation.

The Commission also received comments from employers on the estimated costs of accommodations attributable to the Amendments Act and the regulations, primarily contending:

—The specific data on accommodation costs cited by the Commission in the preliminary analysis was too low (one employer association asserted that the cost will be at least $305.7 million for the first year, with administrative costs likely to exceed $101.9 million per year on a recurring basis; a state government entity commented that the Commission should take into account additional administrative costs employers may bear in order to comply, but did not attempt to estimate these additional costs);

—Each additional accommodation request will affect an employer's ability to cope with the overall number of requests; and

—The undue hardship defense is insufficient to address the financial concerns of small employers.

By contrast, disability rights groups asserted that even if the Commission's estimate of 160,000 additional workers who would request accommodations as a result of the ADA Amendments Act

provided an outer estimate of the number of affected workers, it was too high of a number to gauge the impact of the Amendments Act, in part because the Amendments Act affected those workers whom Congress had always intended to be covered by the ADA and because many employers were treating them as covered.

With regard to the costs of accommodations, a number of comments from academics and disability and civil rights organizations concurred with our preliminary conclusion that the cost would be below $100 million and that no economic impact analysis was required or feasible, and/or argued that the Commission's preliminary analysis had overstated the potential economic impact. Specifically, they argued that the Commission's rough estimates of the number and cost of accommodation requests were speculative and were unnecessary to conclude that the Act's costs are less than $100 million, since available research overwhelmingly demonstrates that accommodation costs are modest, and because neither the Amendments Act nor the proposed regulations change the basic structure of the original ADA. They also argued that the Commission's method of interpreting certain reasonable accommodation data resulted in overestimation of costs; that many accommodations for specific types of impairments have no or very little cost; and that over time, ongoing medical and technological advances can be reasonably expected to reduce both existing and new accommodation costs associated with the ADA or the Amendments Act.

Professor Peter Blanck of the Burton Blatt Institute at Syracuse University, a co-author of the 2006 “
Workplace Accommodations: Evidence-Based Outcomes”
study, filed public comments offering a number of clarifications specifically regarding citation to his study's data, and arguing that the Commission had overstated the cost of accommodations, because the preliminary analysis used a “mean” (or average, calculated by adding all values in a dataset and dividing by the number of points in the dataset), rather than a “median” (the middle point in a dataset).

Professor Blanck considered the median a better measure of the cost of accommodations because so many accommodations have no cost. He pointed out that based on his research, 49.4% of accommodations had zero direct costs. For the 50.6% of accommodations with a cost greater than zero, the median cost in the first calendar year was $600. Professor Blanck further found that for all accommodations, including those with a zero cost, the median cost of accommodations was found to be $25.

Of key importance, no public comments contradicted the Commission's observation in the preliminary analysis that there is a paucity of data on the costs of providing reasonable accommodation, and that much of the existing data is obtained either through limited sample surveys or through surveys that collect limited information. While some employer groups disputed the Commission's cost estimates, none cited any research or studies on actual accommodation costs.

(3) Revised Analysis

Our revised analysis of potential costs for additional accommodations begins with a revised estimate of the number of new accommodation requests, based on the upward adjustment of the number of people with disabilities whose coverage is clarified under the Amendments Act. As we note above, that range is 12 million to 38.4 million people.

(a) Estimated Number of New Accommodation Requests

Estimating the increase in expected requests for reasonable accommodations attributable to the Amendments Act and the final rule is difficult because it requires assuming that some number of individuals with disabilities will now perceive themselves as protected by the law and hence ask for accommodation, but had not previously assumed they were covered and therefore had not asked for accommodations. In reality, individuals with disabilities such as epilepsy, diabetes, cancer, and HIV infection may have considered themselves, and may have been treated by their employers as, individuals who could ask for accommodations such as flexible scheduling or time off. Moreover, in many cases, such accommodations may have been requested and provided without anyone in the process even considering such workplace changes as being required reasonable accommodations under the ADA.

Recognizing that it is impossible to determine with precision the number of individuals in the labor force whose coverage is now clarified under the law and who are likely to request and require reasonable accommodations as a result of that increased clarity, we have tried to determine the number of such individuals by taking the estimated number of labor force participants whose coverage has been clarified and multiplying it by the percentage of employees who report needing accommodations.

According to the Zwerling
et al.
study cited in our preliminary analysis, 16% of employees with impairments or functional limitations surveyed said they needed one of 17 listed accommodations.
Workplace Accommodations for People with Disabilities: National Health Interview Survey Disability Supplement, 1994-1995,
45 J. Occupational & Envtl. Med. 517 (2003)). This 16% figure may be an overestimate of the percentage of those employees whose coverage has been clarified by the Amendments Act who will actually need accommodations, since of the 17 accommodations listed in the study, a number of them would more likely have been needed by individuals whose coverage was not questioned prior to the Amendments Act. For example, these accommodations include accessible restrooms, automatic doors, installation of a ramp or other means of physical access, and the provision of sign language interpreters or readers. These are types of accommodations that would apply specifically to individuals who were clearly covered under the ADA, even prior to the Amendments Act. Only 10.2% of the employees surveyed asked for accommodations such as break times, reduced hours, or job redesign, which are the more likely accommodations to be requested by those individuals whose coverage has now been clarified. Nevertheless, because the Zwerling study surveyed a limited range of people with disabilities, we will use the full 16% figure.

Applying the 16% figure to represent the percentage of individuals whose coverage has been clarified and who would need reasonable accommodations, the resulting increase in reasonable accommodations requested and required as a result of the Amendments Act could range from approximately 2 million (assuming 12 million labor force participants) to 6.1 million (assuming 38.4 million labor force participants).

(b) Factors Bearing on Reasonable Accommodation Costs

After fully considering the preliminary analysis and the public comments, and after further consideration of the issues, the Commission is persuaded of the following facts concerning the costs of accommodations:

—Of those reasonable accommodations requested and required, only a subset will have any costs associated with them. The studies show that about half of accommodations have zero or no cost, and had findings regarding

the mean cost ranging from $45 and $1,183. But most, if not all, of these studies have included accommodations for people who use wheelchairs, who are deaf, or who are blind. These tend to be the most expensive accommodations (e.g., physical access changes such as ramps, automatic doors, or accessible bathrooms; sign language interpreters and readers; Braille and/or computer technology for reading). Passage of the Amendments Act and promulgation of these regulations do not affect these individuals or render employers newly responsible for providing such accommodations, since there was never any dispute, even prior to enactment of the Amendments Act, that people with these kinds of impairments met the definition of disability. Therefore, any estimate of newly imposed costs of accommodations should generally exclude these types of higher-cost accommodations.

—To the extent the calculation of any mean accommodation cost is derived from data that includes accommodations that are purchased for a one-time cost but will be used over a period of years once owned by the employer (either for that employee's tenure or for future employees), the annual cost is actually much lower than the one-time cost. For example, physical renovations and accessibility measures, equipment, furniture, or technology, among other accommodations, may be used over a period of many years at no additional cost to the employer.

—A small percentage of people whose coverage has been clarified may need some physical modifications to their workspace—e.g., the person with mild cerebral palsy who might need voice recognition software for difficulty with keyboarding, or the person whose multiple sclerosis affects vision who needs a large computer screen.

—Most of the people who will benefit from the amended law and regulations are people with conditions like epilepsy, diabetes, cancer, HIV infection, and a range of mental disabilities. The types of accommodation these individuals will most commonly need are changes in schedule (arrival/departure times or break times), swapping of marginal functions, the ability to telework, policy modifications (e.g., altering for an individual with a disability when or how a task is performed, or making other types of exceptions to generally-applicable workplace procedures), reassignment to a vacant position for which the individual is qualified, time off for treatment or recuperation, or other similar accommodations.

—Many of these accommodations will not require significant financial outlays. Some accommodations, such as revising start and end times, allowing employees to make up hours missed from work, and creating compressed workweek schedules, may result in administrative or other indirect costs. However, they may also result in cost savings through increased retention, engagement, and productivity. Other accommodations, such as providing special equipment needed to work from home, will have costs, but might also result in cost savings (e.g., reduced transportation costs, environmental benefits, etc.).

—Time off, both intermittent and extended, may have attendant costs, such as temporary replacement costs and potential lost productivity. But these, too, may be offset by increased retention and decreased training costs for new employees.

—With respect to those individuals whose coverage has been clarified and who 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 policies, employer short- or long-term disability benefits, employer flexible schedule options guaranteed by a collective bargaining agreement, voluntary transfer programs, or “early return to work” programs), or under another statute (e.g., the Family and Medical Leave Act or workers' compensation laws).

(c) Calculation of Mean Costs of Accommodations Derived From Studies

We disagree with Professor Blanck's observation that the median cost is the appropriate value for this analysis because this analysis seeks to estimate the total cost of new accommodations across the entire economy resulting from the Amendments Act and final rule. Using the median value in this case would not capture the total cost to the nation's economy.

For that reason, we will rely on the range of mean costs of accommodations derived from various studies and will attempt to make a reasonable estimation of the likely mean cost of accommodation for those employees whose coverage has been clarified as a result of the Amendments Act. In so doing, we again recognize that references to this data must be qualified by (1) the fact that high cost outlier accommodations are not ones likely to be requested by those whose coverage has been clarified by the Amendments Act and the final rule, and (2) the fact that reasonable accommodations are not needed, requested by, or provided for all individuals with disabilities.

The Job Accommodation Network (JAN) conducts an ongoing evaluation of employers that includes accommodation costs, using a questionnaire to collect data from employers who have consulted JAN for advice on providing reasonable accommodation. As noted above, the most recent JAN study (Workplace Accommodations: Low Cost, High Impact (JAN 2009 Data Analysis) (Sept. 1, 2010)) found that the median cost of reasonable accommodations that had more than a zero cost reported by JAN clients was $600, and the mean cost was $1,183.
18

JAN's cumulative data from 2004-2009 shows that employers in their ongoing study report that a high percentage (56%) of accommodations cost nothing to provide.

18
Information provided to the EEOC by Beth Loy, Ph.D., Job Accommodation Network.

According to JAN,
19

its calculation of the $1,183 mean cost of accommodation was derived from a survey of 424 employers. Two of those employers reported outlying costs of $100,000 each, in both cases for the design and purchase of information system databases for proprietary information that would be accessible to employees with vision impairments. Such employees would have likely been covered by the ADA prior to the Amendments Act, and the type of higher-cost technological accommodation at issue is not the type of accommodation that will likely be needed by most of those whose coverage has been clarified by virtue of the Amendments Act and final regulations. Moreover, in each case, the database was being developed for business reasons, and not specifically as an accommodation.
20

19

Id.

20

Id.
The survey data received by JAN did not indicate whether the $100,000 reported cost was the total cost of the database or the added cost of accessibility. Significantly, one of these employers is a federal agency that was required to purchase an accessible database under section 508 of the Rehabilitation Act of 1973, as amended, so would have had to do so anyway. Therefore, it is not clear that it would be appropriate to consider this a cost of accommodating a single employee under section 501 of the Rehabilitation Act, as amended. The other employer was a federal contractor, and may therefore have had obligations under its contract and/or section 503 of the Rehabilitation Act, as amended, to include accessible features.
Id.

According to JAN, if these two outlier accommodations are deleted from the

data set, the mean cost of accommodation based on the remaining 422 reported accommodations in the survey drops to $715.
21

Even this figure may overestimate the mean cost of accommodations needed for those whose coverage has been clarified by the Amendments Act, most of which we believe will have less significant costs. Nonetheless, we will use $715 as a starting point for calculating the annual mean cost of accommodations attributable to the changes in the definition of a substantially limiting impairment.

21

Id.

The mean cost of $715 represents the average one-time cost of providing a reasonable accommodation. However, JAN reports that many of these accommodations reported in the study involved ones that are then used by the employee (or additional employees) on an ongoing basis, in many cases presumably for a period of years. These included items such as software, chairs, desks, stools, headsets, keyboards, computer mice, sound absorption panels, lifting devices, and carts.
22

Given the nature of these items, their useful life, and ever-advancing technology, we assume for purposes of this analysis a useful life of five years for these items. If those accommodations that can be used on an ongoing basis are used for five years, this would reduce the mean annual cost to one-fifth of $715 (or $143, which we will round to $150 for purposes of this analysis) with respect to those accommodations. In addition, the mean of $715 includes one-time costs of more expensive accommodations such as equipment, technology, and physical workplace accessibility for individuals who were already covered, whereas we believe the cost of the majority of accommodations associated with those whose coverage is clarified by the Amendments Act will be lower. Therefore, any estimate of the mean cost of accommodations overall may exaggerate the cost of accommodations for such individuals. Thus, for purposes of considering the annual impact pursuant to EO 12866, we believe it is appropriate to use the estimated lower mean of $150.

22

Id.

(d) Accommodation Cost Scenarios

Using our estimates above regarding the possible range of the number of individuals whose coverage is clarified under the definition of a substantially limiting impairment or record thereof and who are likely to request and require accommodation, we can project the following estimates of the likely incremental cost of providing reasonable accommodation attributable to the Amendments Act and the final rule, using a $150 mean annual cost of accommodation. Since we would not expect all of these new accommodation requests to be made in a single year, we will assume they will be made over a period of five years, with estimated costs as follows, using the above-discussed estimate of the incremental increase in reasonable accommodations requested and required

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2011-6056. Public record. Not legal advice.