Labor & Employment Law — 12/22/08

EEOC declines to issue notice of proposed rulemaking on ADA amendments

The Equal Employment Opportunity Commission (EEOC) by a 2 to 2 vote on December 11, 2008 declined to issue regulations on the Americans with Disabilities Act Amendments Act (ADAAA) that President Bush signed into law in September.

The ADAAA, which becomes effective on January 1, 2009, altered the definition of "disability" by rejecting certain Supreme Court decisions and portions of the EEOC's ADA regulations. While the legislation retains the basic definition of a disability as an impairment that substantially limits one or major life activities, the statute expressly directs the EEOC to revise the portion of regulations that defines "substantially limits."

By its split vote, the EEOC decided not to move forward with a notice of proposed rulemaking. "We're not ready to start yet," said Commissioner Stuart Ishimaru. He noted that Congress did not mandate that the commission pass regulations by a certain date. "We need to get it done and get it done right," he said.

During an at times contentious debate, Commissioner Christine Griffin said that since the notice would have required 60 days for public comment, it would not have been in place by January 1. "It's not going to happen," she said. Both Ishimaru and Griffin said they have problems with the ADAAA.

Commissioner Constance Barker said that while there were problems with the law put into place 18 years ago, "Congress responded." She added, "I want to start the process."

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