On September 23, the EEOC published it’s proposed regulations for the ADA to conform to the ADA Amendments Act of 2008. The 93 pages of proposed regulations start the 60 day period for public comments on the proposal, although it is not clear when the final regulations will be published. It is unlikely that the final regulations will be issued in 2009. The EEOC published a series of questions and answers last week, and the proposed regulations can also be found on the EEOC website. The proposed regulations appear to be much more specific then the existing regulations, listing specific physical and mental impairments that will "consistently" qualify as disabilities under the ADA, addressing types of action that will constitute "regarded as" discrimination and looking at how to determine impairments when mitigating measures are used by the employee.
Practice pointer. It is important to keep in mind that these are only the proposed regulations to be adopted by the EEOC. After comments are received, the final regulations will be published, probably early next year. I believe that no matter what the final regulations are, the number of people who are considered "disabled" will increase, and the cost of implementing the new regulations will exceed the $100 million per year the EEOC estimates.