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EEOC's Proposed Regulations Under the ADAAA
As you know, the ADA recently received a significant set of changes in the form of the Americans with Disabilities Act Amendments Act (ADAAA). These changes will affect most employers as they deal with medical issues in the workplace. To illustrate the difficulties, attached are my comments to the EEOC regarding the Agency’s proposed regulations to implement the ADAAA. The EEOC will review all the comments submitted by the public and respond by issuing its Final Rule in approximately 60 to 90 days (perhaps in February 2010). My comments to the EEOC addressed the following issues and concerns:
- There is need for a clearer definition of what “substantial” means and a defined protocol for making that determination.
- Providing working as an additional category for an individual’s limitation is not what Congress did in amending the law, and does not present a workable analysis.
- Bodily functions, including the immune system, normal cell growth, endocrine, etc., create issues of application without greater guidance.
- A misclassification should not give rise to a “record of” claim, or any cause of action.
- Please clarify who has the burden of proof and what elements need to be established to prove discrimination.
- Why allow an actual or a record of a disability to exist for fewer than six months to meet the definition of a disability?
- The proposed regulations’ discussion of surgical intervention should be clarified.
The EEOC has commenced a program for enforcing this new law. Now, more than ever before, employers should review all of the legal issues and establish a strategic and tactical plan, policies and practices, and a review procedure to avoid being subjected to prosecution by the EEOC for discriminating against, or failing to accommodate, an individual with a disability.