ADAAA reported today that the Equal Employment Opportunity Commission (EEOC) has privately approved its final draft regulations under the ADA Amendments Act (ADAAA).  So, where does that leave us?  First, the Office of Management and Budget (OMB), a federal agency that must clear rules and regulations before they are published, will have 90 days to review the final regulations.  After OMB approval, the regulations will go public and be published in the Federal Register.  For employers, this means that the era of much uncertaintly surrounding the new ADAAA may soon be over.  

The ADAAA became effective on January 1, 2009.  It contains the first significant changes to the Americans with Disabilities Act (ADA) since 1990.  Information on the key changes under the new Act is detailed in the EEOC’s ADAAA Notice.  We have seen some key court decisions interpreting the new ADAAA (for example, Hoffman v. CareFirst of Fort Wayne, Inc., in which the U.S. District Court for the Northern District of Indiana found cancer in remission to be an ADAAA disability).  But, we’ve been awaiting the final regulations to help clarify many open questions as to the EEOC’s enforcement of the new ADAAA and to provide interpretative guidance.

Still, the proposed regulations have not been free of controversy.  One of the most controversial issues is the EEOC’s attempt to impose a list of ‘per se’ disabilities, that neither the ADAAA provides, nor was expressly authorized by Congress for the EEOC to create, including: 

  1. Deafness
  2. Blindness
  3. Intellectual disability (formerly known as mental retardation)
  4. Partially or completely missing limbs
  5. Mobility impairments requiring use of a wheelchair (a mitigating measure)
  6. Autism
  7. Cancer
  8. Cerebral palsy
  9. Diabetes
  10. Epilepsy
  11. HIV/AIDS
  12. Multiple sclerosis
  13. Muscular dystrophy
  14. Major depression
  15. Bipolar disorder
  16. Post-traumatic stress disorder
  17. Obsessive-compulsive disorder
  18. Schizophrenia

Does this non-exhaustive list of ‘categorical’ disabilities remain in the final regulations?  What about the other issues of controversy (e.g., elimination of ‘condition, manner or duration’ analysis)?  Check back on my blog for updates – I will keep you posted on new developments with the ADAAA.