New York Labor and Employment Law Report : New York Employment Lawyer & Attorney : Bond Schoeneck & King Law Firm : NY Labor Relations, Employee Benefits

As we reported earlier this year, the Equal Employment Opportunity Commission (“EEOC”) has proposed regulations implementing the Americans with Disabilities Act Amendments Act (“ADAAA”). The EEOC published its proposed regulations in September, and the period for public comment recently closed on November 23, 2009. The EEOC will now evaluate the comments it has received and then issue final regulations, which may or may not include changes to the proposed rules.

Consistent with the intent of the ADAAA, the EEOC’s proposed regulations would broaden the definition of what constitutes a protected “disability” under federal law. The EEOC believes that this will have the effect of shifting the focus of litigation away from whether a person’s impairment is a covered “disability,” and to the issue of whether an employer has complied with its obligations under the law.

While many aspects of the proposed regulations appear to reasonably interpret the ADAAA, commentators have noted there are some provisions which, at least arguably, constitute overreaching on the EEOC’s part. Among the most controversial of these provisions are the following:

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The U.S. Equal Employment Opportunity Commission (“EEOC”) has approved new regulations implementing the Americans with Disabilities Act Amendments Act of 2008 . Although these regulations are not yet public (and are pending review at the Office of Management and Budget), recent comments offered by EEOC officials nevertheless provide an insightful glimpse as to what changes employers can expect—including some changes arguably outside the scope of the ADAAA.

Congress passed the ADAAA with the intent of reversing several Supreme Court rulings interpreting the ADA’s scope of protection.  In short, the ADAAA sought to expand the definition of “disability” to cover a broader range of impairments than permitted under the Supreme Court’s interpretation of the law. The legislation also empowered EEOC to draft regulations implementing this new, broader definition.

EEOC recently met to approve proposed regulations fulfilling this mandate. At this meeting, EEOC officials—principally Assistant Legal Counsel Christopher J. Kuczynski—commented on select portions of the new regulations, which appear to constitute a major shift in policy. Given the remedial intent of the ADAAA, this shift will not come as a surprise to most observers. What is surprising, however, is that EEOC’s proposed regulations, at least according to some commentators, arguably exceed the scope of the ADAAA’s rulemaking authority. A few examples illustrate this noteworthy development.

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