Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
When the ADA Amendments Act (ADAAA) goes into effect January 1, 2009, regulations interpreting this new law will not be forthcoming. On December 11, the EEOC failed to approve a notice of proposed rulemaking on this new act, which overturns a number of U.S. Supreme Court cases that narrowly interpreted the scope of the ADA’s coverage.
The four commissioners deadlocked along party lines on whether to approve Republican Chair Naomi Earp’s proposed regulations, which then would have been subject to a 60-day comment period after OMB review and publication in the Federal Register. Reportedly, the sticking point for the Democratic commissioners was that a public meeting on the content of the proposed regulations was premature, as they were not yet finished. Drafts of the regulations have been in the making since August.
Since a transcript of the EEOC meeting is not yet available, the details of the draft regulations are unknown. Thus, it is still unclear as to whether the regulations are objectionable on substantive grounds or just incomplete. What is certain is that regulations or other interpretive guidance on the ADAAA will not be enacted until the next administration, when two new EEOC commissioners will be in place. Since it is anticipated that those vacancies will be filled by employee advocates, the next set of regulations will be more likely to appease the disability rights groups who objected to swift approval of the current version of the act.