Accessibility Update

Between the inauguration and the recent winter weather, it’s amazing anything has been accomplished in Washington in the past two weeks, but as anticipated, President Barack Obama has hit the ground running.

Almost immediately after taking office, Obama’s chief of staff, former Congressman Rahm Emanuel, released a memorandum directing executive branch agencies to defer publication of any new regulations until the rules are reviewed and approved by officials appointed by Obama. One of such regulations is the final Americans with Disabilities Act Accessibility Guidelines (ADAAG) rule.

As you probably remember, the U.S. Department of Justice published a Notice of Proposed Rulemaking (NPRM) last summer soliciting comments on a draft of the ADAAG rule. IAAPA responded with public testimony as well as written comments on the rule. We, along with many in Washington, anticipated the final rule would be published before President Bush left office. The rule was in the Office of Management and Budget's review process when Bush's term expired (all regulations go through this review before being published in the Federal Register and becoming "official").

Since the Department of Justice has withdrawn its draft final rule from the OMB review process, it is unknown when the final rule will be published. The new political officials in the Justice Department could look at the draft final rule and approve it in the next month, or they could send it back through the regulatory process, delaying a final rule for some time.

In other accessibility news, the ADA Amendments Act took effect on Jan. 1, 2009. The amendments overturn a series of Supreme Court cases, expanding the number of workers who are considered disabled under the ADA and increasing the number of employers that must make reasonable accommodations for these employees.

The ADA defines a “disability,” in part, as “a physical or mental impairment that substantially limits a major life activity of an individual.” The ADA Amendments Act emphasizes that this statute should be broadly interpreted to cover more individuals, and in particular, it directs the Equal Employment Opportunity Commission to interpret the term “substantially limits” in a future rulemaking.

The amendments also provide commonly used examples for the undefined ADA term “major life activity,” such as seeing, eating, sleeping, and thinking. This provision also adds “major bodily functions” such as “functions of the immune systems, digestive, and neurological functions” to this list, which could lead to an expansion of workers considered disabled under the ADA.

This Act also makes it easier for individuals to claim that they are disabled based on the perception of disability.

The amendments state that the beneficial effects of mitigating measures such as medications or prosthetics will not be considered in assessing whether an individual has a disability (there is an exception for eyeglasses or contact lenses). They also clarify that an impairment that is temporary or in remission, such as epilepsy or cancer, can be considered a disability.

The ADA amendments leave many questions unsettled—for instance which disabilities will be considered to “substantially limit” a major life activity and what types of reasonable accommodations employers may have to provide. If the Obama administration chooses to send the ADAAG rules back to the drawing board, I would expect these questions to be addressed in the regulatory process.