What the New Regulations Mean to You
Last year, Congress made important changes to the Americans With Disabilities Act (ADA), broadening the scope and making it easier for applicants and employees to prove that they (a) have a disability and (b) are entitled to the protections of the ADA, including reasonable accommodation. This new law, the ADA Amendments Act of 2008 (ADAAA), became effective on January 1, 2009.
On September 23, 2009, the Equal Employment Opportunity Commission (EEOC) published its proposed regulations interpreting the ADAAA. The EEOC is seeking public comment regarding the proposed regulations between now and November 23, 2009. What this means to you is an opportunity to offer your comments, including suggested revisions, and provide information to the EEOC that will help the EEOC to more accurately determine the impact of the proposed regulations on you and your business or industry.
Under the proposed regulations, employers will be required to revise their policies, train or re-train human resources personnel and supervisors on how to deal with disability issues, and how to focus on reasonable accommodation and the interactive process between the employer and the disabled employee or applicant.
The proposed regulations include the following key provisions:
- Requires broad interpretation of "disability." Unlike the narrow interpretation by courts prior to the ADAAA, the focus in a disability discrimination case would now be on whether discrimination has occurred, not on whether the individual is disabled.
- Provides that the term "substantially limits" no longer means that a limitation must be significant or severe. The new definition is less stringent and does not require an individual to be "significantly" or "severely" limited in a major life activity. Rather, the level of limitation required is "substantial" as compared to most people in the general population and must be more than a temporary, non-chronic impairment of short duration with little or no residual effects, such as the common cold or flu.
- Expands the definition of "major life activities." Added are two non-exhaustive lists of activities and bodily functions that constitute "covered major life activities." The first list identifies activities such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, interacting with others, and working. The second list identifies major bodily functions (e.g. functions of the immune system, special sense organs, and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions.)
- Adds a list of impairments that will consistently meet the definition of disability. This list includes deafness, blindness, intellectual disability (formerly termed mental retardation), partially or completely missing limbs, mobility impairments requiring use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV or AIDS, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.
- Precludes employers from considering mitigating measures. In assessing whether an applicant or employee is disabled, an employer may not consider the positive impact of medications, prosthetics, or other mitigating measures. The one mitigating measure that may be considered is the use of ordinary eyeglasses or contact lenses.
- Provides that an impairment that is episodic or in remission is a disability. Conditions would be considered disabilities if they substantially limit a major life activity when such conditions are active.
- Changes the definition of "regarded as." Here, Congress has lowered the standard of proof. An employee must only prove that he/she was subjected to discrimination the employer because of an actual or perceived impairment. Prior to the change, employees were required to show that the employer perceived the individual to be substantially limited in a major life activity.
Expressly provides that individuals covered under the "regarded as" prong of the definition of disability are not entitled to reasonable accommodation.
- Prohibits the use of qualification standards, employment tests, or other selection criteria based on an individual's uncorrected vision unless shown to be job-related for the position in question and consistent with business necessity.
What it Means to You
Many more applicants and employees will now qualify as disabled. As a result, the reasonable accommodation and non-discrimination obligations of the ADA will now be a much more common concern for you as you screen applicants and manage employees. You need to be ready.