Proposed Revisions to the Americans with Disabilities Act

The Equal Employment Opportunity Commission recently published a notice of proposed revisions to the Americans with Disabilities Act (ADA) regulations to bring these regulations into compliance with the ADA Amendments Act of 2008.

The proposed revisions provide for the definition of "disability" to be construed broadly. “Disability” is presently defined as (i) a physical or mental impairment that substantially limits one or more major life activities; (ii) a record of such impairment; or (iii) being regarded as having an impairment. Within this definition, the term “major life activities” is defined as basic activities, including major bodily functions that most people can perform with little or no difficulty.

The proposed revisions set out a specific, non-exhaustive list of "major life activities," which include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, sitting, lifting, bending, speaking, breathing, learning, reading, concentrating, communicating, interacting with others and working.

The proposed revisions also set out a specific, non-exhaustive list of major bodily functions that constitute major life activities, which include 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.

Several rules of construction for “substantially limited,” are also proposed, including the following: (1) That the focus should be on whether discrimination occurred, not on whether the individual meets the definition of disability; (2) that to be disabled, an individual does not have to demonstrate that he or she has limited ability to perform activities of “central importance to daily life;” and, (3) that the term “substantially limits” should not require extensive analysis.

Conforming with the ADA Amendments Act, the proposed revisions state that the ameliorative effects of “mitigating measures” (for example, medication or hearing aids, use of assistive technology, auxiliary aids or services) would not be taken into account in determining whether an impairment substantially limits a major life activity. In addition, an individual who has only minor or no limitations related to an impairment because of the use of mitigating measures would still be considered disabled if the impairment would be substantially limiting without the individual’s use of those mitigating measures. Further, impairments that are episodic (e.g., epilepsy) or in remission (e.g., cancer) would constitute disabilities if they would be substantially limiting “when active.”

The ADA Amendments Act indicates that the expansive definition of disability will be a categorical, and less individualized, assessment of whether someone has a disability. Although the notice of proposed revisions provides that an individualized assessment would continue to be part of the analysis, it provides that certain impairments (e.g., autism, cancer, cerebral palsy, diabetes, epilepsy and AIDS or HIV) would consistently meet the definition of disability, and the individualized assessment could be conducted “quickly and easily” to reach that determination.

The revisions further propose that to be substantially limited in the major life activity of working, an individual must be unable to perform a “type of work,” taking into account the nature of his or her work and job-related requirements. This new standard replaces the current standard of needing to determine whether an individual is substantially limited from working a class or broad range of jobs.

The proposed revisions to the regulations also reiterate the significant change to the definition of “regarded as” disabled established by the ADA Amendments Act. They provide that an individual would be regarded as disabled if he or she is subjected to an action prohibited by the ADA (for example, termination, demotion) on the basis of an actual or perceived impairment, regardless of whether the impairment limits or is perceived to limit a major life activity.

What are the implications of the revisions? Quite simply, there is likely to be an increase in the number of individuals considered to be disabled. However, the proposed revisions only deal with the definition of disability. Consistent with the ADA Amendments Act, they do not alter the ADA’s analysis of what constitutes a reasonable accommodation or whether the accommodation requested would present an undue hardship. Therefore, employers may still be able to challenge accommodation requests on the basis of those factors.

The EEOC is seeking comments on the proposed revisions through November 23, 2009. After reviewing all comments received, the EEOC hopes to issue final regulations in early 2010.

COBRA Subsidy: A Significant Benefit . . . But a Word of Caution

With the unemployment rate continuing to climb, the American Recovery and Reinvestment Act of 2009 (the "Act') signed by President Obama last February continues to be very relevant for unemployed workers. Specifically, I am referring to that part of the Act's economic stimulus measures that include a temporary COBRA premium subsidy.

The COBRA premium subsidy provides assistance for eligible unemployed workers. Briefly stated, eligible employees are those that are (a) involuntarily terminated (b) between September 1, 2008 and December 31, 2009, and (c) have gross incomes of less than $145,000 per year ($290,000 for joint filers). Employees with gross incomes of between $125,000 and $145,000 are eligible, but they will have to repay the premium, which is effectuated through an increase in the person's income tax liability. The subsidy is 65% of the premium amount, and is for a period of up to nine months.


Employees whose job is involuntarily terminated, and who meet the eligibility criteria should look into this very significant benefit. But, a word of caution: If the employee is offered a severance package, and the severance agreement that typically accompanies such a severance offer contains a general waiver provision, that provision may affect the employee's capacity to commence legal action to enforce his or her rights under COBRA and the Act in the event that the rights are denied.

Whether or not the waiver affects those rights involves a complicated, fact-specific analysis. It is best to have the severance agreement carefully reviewed by legal counsel before signing.

New Amendments to New York's Labor Law and Fair Employment Practices

Equal Pay Law

New York's Labor Law, Article 6, Section 195, was amended on July 29, 2009. This law requires employers to give notice to employees at the time of hire of the rate of pay and of the employer's designated regular pay day. However, effective October 26, 2009, employers will now be required to give such notice to employees in writing. In addition, employers will now be required to obtain written acknowledgment from each employee of receipt of the notice.

Labor Law, Article 6, Section, 195, as amended by Ch. 270 (S.B. 3357), L. 2009, enacted July 28, 2009, and effective October 26, 2009. Para 33-23,100.02.

Fair Employment Practices Law

New York’s Executive Law has been amended, effective immediately, to prohibit employers from discriminating against victims of domestic violence or stalking based upon his or her status as a domestic violence victim.

A. 755, L. 2009, enacted July 7, 2009, at NY ¶33-2500.

Mediation Rapidly Developing in Italy as a Form of Dispute Resolution

As in the U.S., mediation as a form of dispute resolution is rapidly developing in Italy.

Its development has been aided not only by legislation on corporate disputes, which gave official status to mediation institutions, but also by a greater awareness of mediation among Italian judges that has sparked various initiatives in court-referred mediation.

A new law, Law 69/2009, which became effective on July 4, 2009, amends the Italian Code of Civil Procedure Law regarding the mediation process.

The new law provides that the mediation of disputes must be carried out by professional and independent instituations that are dedicated to the performance of mediation services. These institutions will be listed in a registry maintained by the Ministry of Justice. The registry currently lists over 40 institutions that may conduct the special corporate mediation process. The law provides that these institutions shall include, as of right, mediation agencies set up by Italian Chambers of Commerce. It also confirms the existing right of Bar Councils (the equivalent of our Bar Associations) and other professional bodies to set up their own mediation institutions, which shall also be entitled to be listed in the registry.

Mediators may have recourse to expert witnesses in special matters and mediation institutions may conduct mediation online. In fact, the mediation service of the Milan Chamber of Arbitration has already established an online mediation service.

Interestingly, under the new law, a mediator is empowered to issue a recommended solution to a dispute if no agreement can be reached and if all parties so request. The parties must state whether they are prepared to accept the recommendation; if not, they must state their reasons. If the judgment issued in a subsequent court proceeding is the same as the mediator's recommendation, the allocation of costs may be affected. The court can refuse to award costs if the winning party previously rejected the mediator's recommendation, and it may even order the winning party to pay the losing party's costs and court fees. Remember that in the U.S., generally, unless there is a contract that stipulates to the contrary, each party pays its own legal fees and costs regardless of whether the party ultimately wins the lawsuit.

An agreement reached by parties in mediation will be binding on them. And, when certified by a court, it will also be enforceable.

The new law establishes a mediation process and procedure that is somewhat different than the manner in which mediation is conducted in the U.S. It will be interesting to see if the U.S. follows suit and begins to enact similar mediation rules for a process that is, so far, not uniformly regulated.