June 24, 2009 —Last week the EEOC held a public meeting about the ADA Amendments Act that was passed last congress and how EEOC regulations should be updated to reflect those changes. At the meeting, they announced a proposed Notice of Proposed Rule Making (NPRM). This is where they announce what they are planning on publishing as a proposed rule before they actually publish the proposed rule, so forgive me if that sounds redundant.
The proposed NPRM is fairly extensive and goes beyond the actual legislative text in its scope in some places. For example, in defining the term "disability," the proposed NPRM expands the list of major life activities to include bending, reading, and communicating (which are included in the legislative text) as well as reaching, sitting, and interacting with others (not included in the legislative text). It also extends the list of "major bodily functions" to include functions of the hemic, lymphatic, and musculoskeletal systems.
The part of the ADA Amendments Act that received the a lot of press coverage was its handling of impairments that can be fixed with mitigating measures, such as taking insulin to control diabetes. The proposed NPRM states that these impairments could be considered disabilities under the "substantially limits one or more major life activities" test if it the impairment would be substantially limiting without a mitigating measure, even if an individual has never experienced limitations because of mitigating measures. However, ordinary eyeglasses or contacts are not included in the definition of "mitigating measure."
The assistant legal counsel who summarized the proposal at the meeting, stated that the definition of "disability" should be construed "in favor of broad coverage" and "should not demand extensive analysis."
The ADA Amendments Act has been in effect since January 1 of this year and required that the EEOC create new regulations even though it didn't set a deadline for those regulations. Before this meeting, the EEOC commissioners were split 2-2, with one vacancy, on proposing a set of rules. The vote on this proposed NPRM was 2-1 with 2 vacancies on the Commission after Commissioner Naomi Earp resigned.
Commissioner Constance Barker, the one vote against the proposed NPRM, expressed serious concerns with the proposal at the meeting as well. "Even if there are concepts that we wish Congress had incorporated into the ADA Amendments Act, we cannot risk shifting the meaning of the words that Congress selected, by gratuitously inserting - or by removing - our own concepts unless there is authority to do so," she said. "Based on what I believe was a careful and comprehensive review, it is my belief that the proposed revisions to the regulations that are before us today have incorporated a number of changes that were not intended by Congress and that, if left uncorrected, will upset the balance of interests that those who negotiated the wording of the Act were so careful to achieve."
Another thing to keep in mind with the proposed NPRM is that the NPRM has not been published, commented on, or passed and one of the Commissioners who voted for it is slated to leave the EEOC for a post at the Office of Personnel Management soon. Commissioner Christine Griffin has been appointed to be Deputy Director of OPM. One interesting not is that once she assumes this post, she will be the highest ranking, disabled government official.
All of this leaves the fate of this proposed NPRM up in the air. WorldatWork will be reviewing the NPRM once it's published, which is rumored to be sometime in August.
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