Final Disability Regulations Coming Soon

The Equal Employment Opportunity Commission (“EEOC”) recently announced its approval of long-awaited final regulations under the ADA Amendments Act (“ADAAA”). EEOC has requested expedited review of the proposed regulations by the Office of Management and Budget. Thus, the new regulations may well issue before the usual 90-day OMB review deadline.

Among the subjects likely to be addressed in EEOC’s regulations are:

(i) whether “substantially limited” in a major life activity “should not require extensive   analysis” and often may be determined using a “common-sense standard, without resorting to scientific or medical evidence”;

(ii) whether a “temporary” impairment (e.g., less than 6 months) can be substantially limiting -- because the ADAAA does not set a durational minimum;

(iii) whether a number of specified conditions will “consistently meet” the definition of disability, including cancer, cerebral palsy, diabetes, epilepsy, HIV and AIDS, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia;

(iv) whether employers must reasonably accommodate those with a “record of” disability absent undue hardship; and

(v) whether ADA “regarded as” analysis prohibits action against an individual because of symptoms related to an impairment or because of mitigating measures such as medication, even if the employer is unaware of the underlying impairment.

See Seyfarth Shaw Management Alert dated 09/30/09 (“EEOC Issues Proposed Regulations Under the ADA …”).

Regardless of final regulation particulars, the new rules will greatly expand the meaning of “disability” under the ADAAA. In enacting the ADAAA, Congress made clear that employers should focus on reasonable accommodation – as opposed to whether the individual seeking accommodation is disabled. The forthcoming regulations will likely emphasize this as well.

For further ADAAA updates, please contact the Seyfarth attorney with whom you work or any Labor & Employment attorney on our website.