Late last week, the Office of Management and Budget approved much-anticipated final regulations under the ADA Amendments Act (“ADAAA”). The Equal Employment Opportunity Commission sent OMB the regulations at the end of 2010. That OMB approved the new regulations in less than 90 days (the usual regulatory review period) reflects the Obama Administration’s continued commitment to heightened civil rights enforcement. Publication in the Federal Register is expected any day.

Subjects likely to be addressed in the final regulations include:

  • whether a “temporary” impairment (e.g., less than 6 months) can be substantially limiting, and thus covered under the ADAAA;
  • whether numerous 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;
  • whether a list of covered conditions effectively nullifies the original ADA’s case-by-case approach for determining disabling impairments;
  • whether employers must reasonably accommodate those with a “record of” disability absent undue hardship; and
  • whether ADA “regarded as” analysis now prohibits action against an individual based on symptoms related to an impairment or on mitigating measures such as medication, even if the employer is unaware of the underlying impairment.

Consistent with Congress’s announced intent in the ADAAA, the new rules will greatly expand the meaning of “disability” under federal law. Through its new regulations and increased litigation, EEOC plans to make sure employers focus on reasonable accommodation – as opposed to whether the individual seeking accommodation is disabled.