Employment: EEOC Working On New Regulations

08.01.09

Recall that in our October 2008 Employer’s Legal Resource®, we told you that the Americans with Disabilities Act Amendments Act had been signed into law. Congress’ intent was clear – to provide more protection to more people. Congress took issue with the way the ADA had previously been interpreted by the courts and the EEOC.

Well, after months of internal discussion, on June 17, the EEOC approved a notice of proposed rulemaking. In other words, they have the first draft of the new regulations interpreting the ADAAA. These regulations are expected to cover more persons under the law. Thus, the threshold to be protected from disability discrimination will be lower.

Once disseminated, there will be a period for public comment. Then, the EEOC will take time before the final regulations are published. How long will this take, you wonder? I do too.

For now, remember the guidance we gave last October, focus on the work, not the person. Make your decisions about the work, not the person. Make no assumptions. Unless the employee brings you medical restrictions from his doctor, you should treat that employee as you would any other employee – fully capable of doing the job for which he was hired. If your employee simply tells you she has a disability, insist on getting medical restrictions in writing from her treating physician before you take any action. Do not Google or guess. Wait for the facts. Once you have the facts, don’t forget the ADA requires an interactive process to determine if there is a way the person can be accommodated and remain gainfully employed.

Finally, until all of the regulations are finalized, it may be wise to seek legal counsel if you have an employee you think is disabled, who tells you he is disabled, or who brings you medical information requiring out of the ordinary accommodations. Caution is in order.

By Kristen L. Brightmire, kbrightmire@dsda.com

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Rebecca D. Bullard

Rebecca D. Bullard

Rebecca represents clients primarily in labor and employment litigation and counsels clients regarding everyday employment matters. 

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