Employment-EEOC Approves Proposed ADA Regulations for Public Comment

In a press release dated September 16, 2009, the Equal Employment Opportunity Commission (the “EEOC”) announced that it has approved a notice of proposed rulemaking (an “NPRM”), which revises its regulations to reflect the changes which Congress made to the Americans with Disabilities Act (the “ADA”) last year in the ADA Amendments Act of 2008 (the “2008 Amendments”). The NPRM has a 60-day period for public comment. This period will officially start upon the publication of the NPRM in the Federal Register, which is expected to be during the week of September 21, 2009. The NPRM will also be available on the EEOC’s website, www.eeoc.gov, along with a question-and-answer guide about the proposal and instructions for submitting public comments.

According to the press release, the NPRM makes several significant changes to the definition of the term “disability”, which are necessitated by the 2008 Amendments. It reported a statement by acting EEOC Vice Chair Christine M. Griffin that “Congress recognized that the intent of the ADA was being misread, that its goals were being compromised, and that action had to be taken. These regulations will shift the focus of the courts away from further narrowing the definition of disability, and put it back where Congress intended when the ADA was enacted in 1990.”

The press release further states that, consistent with the 2008 Amendments, the NPRM indicates that:

— the definition of “disability”- an impairment that poses a substantial limitation in a major life activity – must be construed in favor of broad coverage of individuals, to the maximum extent permitted by the provisions of the ADA, and should not require extensive analysis;

–major life activities include “major bodily functions”;

–mitigating measures, such as medications and devices that people use to reduce or eliminate the effects of an impairment, are not to be considered when determining whether someone has a disability; and

–impairments which are episodic or in remission, such as epilepsy, cancer, and many kinds of psychiatric impairments, are disabilities if they would “substantially limit” major life activities when active.

The proposed regulations also provide a more straightforward way of demonstrating a substantial limitation in the major life activity of working, and implement the 2008 Amendment’s new standard for determining whether someone is “regarded as” having a disability.