If you are a regular reader of this blog site, you are most likely aware that there have been significant changes to the Americans with Disabilities Act. On September 25, 2008, President Bush signed the Americans with Disabilities Act Amendments Act (ADAAA), which went into effect on January 1, 2009, and is not retroactive. Although the effective date was over two years ago, revised implementing rules were not finalized until March 24, 2011, when the EEOC published its ADAAA final rule (72 Federal Register 16978). The regulations apply to all private, state and local government employers with 15 or more employees, employment agencies, labor organizations (unions), and joint-labor-management committees.

Definition of “Disability” Does Not Change

It is important to note that the ADAAA and regulations retain the basic definition of “disability” as described in the original ADA, but make clear that the interpretation of the term has changed.

1) The determination of whether an impairment substantially limits a major life activity must be made without regard to the use of mitigating measures such as medication, medical equipment, prosthetics, hearing aids, mobility devices, oxygen equipment, etc. Simply put, if an employee’s condition would qualify as a disability without such aids, the employee should be considered to have a protected disability. (Note: an exception is made for ordinary eyeglasses and contact lenses.) Further, an impairment that is “episodic or in remission” is a disability even when inactive “if it would substantially limit a major life activity when active.” Examples may include cancer, epilepsy, and post-traumatic stress disorder.

2) It expands the definition of “regarded as” by providing that an individual is
“regarded as” having a disability if the employee establishes that he or she has been discriminated against because of an actual or perceived physical or mental impairment, whether the impairment limits or is perceived to limit a major life activity. it should be noted, however, that the “regarded as” requirement does not apply to transitory and minor impairments with the actual or expected duration of less than six months.

3) The ADAAA expands the definition of disability by introducing a new, non-exhaustive list of major life activities that include: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. Also, for the first time, the ADAAA has stated that major life activities will include the operation of major bodily functions, including but not limited to functions of the immune system; normal cell growth; and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.

4) Given the new lists, some conditions will almost always be deemed to substantially limit a major life activity. The ones mentioned in the Final Regulations are: Deafness, blindness, intellectual disability (formerly known as mental retardation), partially or completely missing limbs, mobility impairments requiring use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia.

5) The regulations include a new provision making it clear that a person cannot sue under the ADA pursuant to a reverse discrimination-type theory. No claims can be made that an individual without a disability was discriminated against because of a lack of a disability.

What Your HR Department Should Do

In light of these changes, here are a few practical steps and actions that employers and HR Departments can take to assure compliance with the new regulations:

  • Review your job descriptions to ensure that elements of the job listed as “essential functions” are truly job-related and consistent with business necessity;
  • Take a look at your employment policies and employee handbook and review your employment policies on disabilities and reasonable accommodations. If your policy currently has a detailed description of what constitutes a “disability”, you may want to check with outside counsel to determine if any changes are necessary;
  • Educate supervisors and managers about the ADAAA changes and emphasize the importance of engaging in interactive discussions with employees potentially covered by the new regulations. Encourage supervisors to consult with the HR Department or outside counsel whenever an employee requests an accommodation, particularly if there is any question as to the validity of the request. They should be reminded to never immediately refuse a request or retaliate in any way against an employee for requesting an accommodation.
  • Ensure that your company has a formalized process for addressing requests for reasonable accommodations.
  • Reconsider previously declined requests for accommodations that may have been declined because they did not meet the ADA’s definition of a disability.
  • Make sure that all decisions declining a request for accommodation are done in writing and clearly delineate the non-discriminatory reason for the action and the steps that were taken to arrive at the decision.
Ann Kontner is a former senior human resources executive with vast experience in all facets of the HR field. She brings to S&J over 25 years of HR experience in corporate compliance, administrative management, staff development and executive leadership skills. She has worked for a wide range of employers including both public and privately held corporations, federal government contractors, and has experience working in both domestic and international markets.
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