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Proposed Revisions to ADA Regulations to Be Published for Public Comment

September 21, 2009

On September 17, 2009, the Equal Employment Opportunity Commission ("EEOC") announced its plan to publish a proposed rule to revise current ADA regulations in the Federal Register during the week of September 21, 2009. The same day, the EEOC posted on its website a question and answer guide regarding the proposed regulations.

The proposed revisions are intended to square the regulations with the legal changes set forth in the ADA Amendments Act of 2008. The regulations are expected to construe the definition of "disability" more broadly than in the past. Among the proposed regulations referenced in the EEOC's question and answer guide ( "Questions and Answers on the Notice of Proposed Rulemaking for the ADA Amendments Act of 2008") are those concerning the definition of disability, the impact of mitigating measures, how conditions that impair bodily functions, as opposed to life activities, will be construed, and how episodic conditions will be treated.

The anticipated changes will likely shift the practical emphasis of employers and other covered entities away from whether an individual was sufficiently impaired to be "disabled" under the law, an issue that was often determinative of court cases in the past. The new regulations will instead encourage greater focus on whether the duty of reasonable accommodation has been met.

A period of public comment regarding the proposed rule will follow its publication in the Federal Register, during which interested parties may provide input prior to the issuance of any final regulations. The EEOC's Questions and Answers on the Notice of Proposed Rulemaking for the ADA Amendments Act of 2008 can be viewed on the EEOC's website at the following link: http://www.eeoc.gov/policy/docs/qanda_adaaa_nprm.html

We will update you as further developments arise with respect to these proposed regulations. If you have any questions, please contact Stephanie Setterington or another member of Varnum's Labor and Employment Relations Group.

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