(This posting was written by the law firm Seyfarth Shaw)
The Equal Employment Opportunity Commission’s long-awaited regulations under the ADA Amendments Act (“ADAAA”) has been issued. The regulations will become effective on May 24, 2011. Much of the new regulations and accompanying guidance is unsurprising and comports with the language of the ADAAA. For example: the statute is to be construed broadly; employers should focus on accommodations, as opposed to questioning whether someone is disabled; and mitigating measures including medicine, other treatments, and prosthetic devices must be set aside in analyzing whether an individual is “disabled.”
What is surprising, and doubtless game-changing, is the agency’s decision to list conditions that, according to the EEOC, will “virtually always” be covered impairments. The EEOC says those impairments are not per se disabilities, as it must if the new regulations are to resemble the original statute. Yet, by characterizing listed conditions as “virtually always” covered, the agency has in effect labeled tens of millions of Americans disabled.
The EEOC did not stop there. Rejecting the views of business organizations and employment attorneys, the EEOC has made clear that any impairment – no matter how brief in duration – can be a covered disability. By those changes and others, the EEOC’s new regulations will further burden employers, not only with compliance challenges but also litigation that will inevitably follow the EEOC’s expansive approach.