by Brian A. Vandiver of Mitchell Williams
On March 24th, the EEOC's final regulations for the ADA Amendments Act ("ADAAA") were made public. The EEOC originally proposed its implementing regulations (the Notice of Proposed Rulemaking or "NPRM") for the ADAAA on September 23, 2009. After receiving hundreds of comments and conducting several public meetings, the EEOC revised its regulations. According to the EEOC, the "final regulations modify or remove language that groups representing employer or disability interests had found confusing or had interpreted in a manner not intended by the EEOC." The EEOC provides the following examples of how the final regulations differ from the NPRM:
· Instead of providing a list of impairments that would "consistently," "sometimes," or "usually not" be disabilities (as had been done in the NPRM), the final regulations provide the nine rules of construction to guide the analysis and explain that by applying those principles, there will be some impairments that virtually always constitute a disability. The regulations also provide examples of impairments that should easily be concluded to be disabilities, including epilepsy, diabetes, cancer, HIV infection, and bipolar disorder.
· Language in the NPRM describing how to demonstrate that an individual is substantially limited in "working" has been deleted from the final regulations and moved to the appendix (consistent with how other major life activities are addressed). The final regulations also retain the existing familiar language of "class or broad range of jobs" rather than introducing a new term, and they provide examples of individuals who could be considered substantially limited in working.
· The final regulations retain the concepts of "condition, manner, or duration" that the NPRM had proposed to delete and explain that while consideration of these factors may be unnecessary to determine whether an impairment substantially limits a major life activity, they may be relevant in certain cases.
At first glance, many of the revisions contained in the ADAAA's final regulations appear to be somewhat favorable to employers and the ADA's other covered entities. Nonetheless, there is little dispute that the ADAAA and its final regulations have made and will to continue to make defending ADA claims more difficult. Employers and other covered entities under the ADA should review their policies and practices to ensure compliance with the ADAAA and its final regulations.
The EEOC's press release is available here: http://www.eeoc.gov/eeoc/newsroom/release/3-24-11.cfm
The EEOC's final regulations for the ADAAA and other documents relating to the ADAAA and its final regulations are available here: http://www.eeoc.gov/laws/statutes/adaaa_info.cfmEmployers