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Why Wait for the EEOC? Expert Clarifies ADAAA Requirements

Nearly two years after Congress passed the ADA Amendments Act (ADAAA), the Equal Employment Opportunity Commission (EEOC) announced recently that employers should not expect to see new regulations providing a more detailed explanation of the law’s requirements anytime soon.

To understand the reasons for the delay and how it may affect employers, we spoke with nationally recognized ADA lawyer Jonathan Mook. The following series of questions and answers summarizes what he had to say about the delayed regulations, the likelihood of them being published by the end of the year, and the steps employers should be taking to ensure ADA compliance in the meantime.

ADA Compliance Virtual Summit: Advanced Issues and Challenges for Employers

Q: Let’s start with the basics. Why do employers need to be concerned about the issuance of the final ADA regulations? Aren’t the existing regulations good enough for now?

A: Although some of the existing Americans with Disabilities Act (ADA) regulations (originally issued in 1991) are still valid, many provisions were nullified by the passage of the ADAAA. In particular, the ADAAA dramatically expanded the situations in which an employee or applicant will be considered “disabled.” The criteria for determining whether an employee is “regarded as disabled” were also significantly loosened.

Until the EEOC issues final regulations on these and other changes made by the ADAAA, employers must decide for themselves how best to comply with the law’s new requirements.

Q: Should employers wait for the final regulations before making major changes in how they handle ADA issues?

A: Absolutely not! Employers are required to comply with the ADAAA, regardless of whether the EEOC has issued final regulations to clarify exactly what it requires.

Q: Didn’t the EEOC already issue regulations explaining the ADAAA’s new requirements?

A: Yes, but they were only proposed regulations. It is far from certain that the final regulations will follow the same approach as the proposed ones.

Q: Wouldn’t employers be safe to follow the proposed regulations as if they were in effect?

A: That certainly is one option to consider. Even though the proposed regulations are technically not applicable to employers yet, there have been reports that the EEOC is applying them in its investigations of disability discrimination charges. But in general, employers are required to undertake good-faith efforts to comply with the ADA’s new requirements. That may or may not entail following the approach set out in the proposed regulations.

Americans with Disabilities (ADA) Compliance Manual

Q: What types of things do you think could change under the final regulations as compared to the proposed regs?

A: The most controversial aspect of the proposed regulations is that they list a number of specific health conditions that are automatically deemed to qualify as disabilities. These are referred to as “categorical” or “per se” disabilities. The big issue for employers is whether the EEOC will stick with that categorical listing or abandon it in favor of more flexible criteria.

For example, the proposed regulations also provide a list of separate conditions that may or may not qualify as a disability, depending on how severe the impairment is, the extent to which it limits the employee’s daily activities, and so on. It is possible that the EEOC will abandon the categorical approach in favor of one that is more akin to this list.

In the long run, however, it’s questionable whether that will make much of a difference. The ADAAA’s stated purpose was to change the conversation from “Is the employee disabled?” to “Did the employer discriminate against the disabled employee?” In some ways, this is actually beneficial for employers, who can turn their attention from the existence of a disability to making sure proper accommodations are made and no discrimination occurs.

Q: Realistically, do you have any idea when the EEOC will publish the final regulations?

A: It’s hard to say. Potentially, the delay could last well into next year. According to EEOC Commissioner Victoria Lipnic, the regulations have been put on hold due to the recent addition of three new commission members and a new EEOC general counsel. Rather than go forward with the proposed regulations that were released in September 2009, the new commissioners intend to reexamine the hundreds of public comments that were filed in response to those regulations.

In addition, three of the current commissioners are interim appointees. Lipnic’s appointment expires at the end of 2010, and the terms of the two other appointees expire at the end of 2011. If the final regulations aren’t issued by the time Lipnic’s appointment expires (assuming she is not approved as a permanent commissioner before then), then it could take even longer for the regulations to be finalized.

HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including the Americans with Disabilities Act

Q: What advice can you give to employers regarding strategies for ensuring that they both comply with the ADA’s requirements and minimize the potential for litigation?

A: It’s an old mantra, but it’s more important now than ever before: Document, document, document. It is absolutely critical that employers have the documentation to back up their actions with regard to disabled employees or applicants. In particular, make sure you:

  • Have current, detailed job descriptions that specifically identify the job’s essential functions.
  • Always initiate the interactive process and follow it through to a good-faith resolution.
  • Make sure you contemporaneously document all employment actions and decisions, no matter how mundane. This is absolutely crucial in proving that the real motivation for your actions was legitimate and not discriminatory.

Jonathan Mook is a founding partner of DiMuroGinsberg in Alexandria, Virginia. On June 23, 2010, He will discuss the new definition of “disabled” under the revamped ADA and answer employers’ trickiest accommodation questions during the new extended web seminar, ADA Compliance Virtual Summit: Advanced Issues and Challenges for Employers. His co-presenter will be Tulsa employment law attorney Audra Hamilton, author of ADA Compliance: Practical Solutions for HR.