CLIENT ALERT: Americans With Disabilities Act Amendments Act of 2008 Proposed Regulations…

Americans With Disabilities Act Amendments Act of 2008 Proposed Regulations… What does it mean for employers?

On January 1, 2009, the Americans With Disabilities Act Amendments Act of 2008 (“ADAAA”) became law. The purpose of the ADAAA was to reject a line of U.S. Supreme Court decisions that narrowed the definition of “disability” under the ADA.

The ADAAA significantly expands the scope of ADA coverage, enabling more individuals alleging disability-based employment discrimination to establish that they are disabled under the ADA. To that end, Congress directed the EEOC to revise its ADA regulations to comply with the ADAAA.

For Example:

Is an individual with carpal tunnel syndrome, who is not substantially limited in performing manual tasks when compared with most people in the general population, but who is unable to perform his job as a machine operator and other jobs requiring similar repetitive tasks disabled?

Is an individual who was misdiagnosed in the past with bipolar disorder and hospitalized as a result of a temporary reaction to mediation disabled under the ADA, even though she does not actually have bipolar disorder?

Has an employer “regarded” an individual as disabled by refusing to hire them because they have a facial tic, even if the employer does not know the facial tic is caused by Tourette’s Syndrome?

Answer: The proposed new EEOC regulations say, Yes!

WHAT DOES THIS MEAN FOR EMPLOYERS? There will much less focus on whether someone is disabled, since most everyone who has, or has had, significant medical issues that affect their ability to work or engage in normal daily activities will be considered disabled. Instead the focus will be on whether and how well the employer accommodated the employee’s disability and whether the employer discriminated against the employee because of a current, past or perceived disability.

Here is what the proposed rule does:

Changes in the Analysis of a “Disability”

  • provides that the definition of “disability” shall be interpreted broadly;
  • provides that mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a “disability”
  • specifies that a determination of whether an impairment “substantially limits” a major life activity will be based on a “common sense assessment based on comparing an individuals ability to perform a specific major life activity with that of most people in the general population”
  • provides that the determination of whether someone is disabled not require exacting or statistical analysis;
  • provides that an impairment need not prevent or “significantly” or “severely” restrict a major life activity to meet the disability standard
  • provides that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
  • adds a list of conditions that will “consistently meet the definition of disability.” These impairments include, but are not limited to, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia;

Changes in Major Life Activities, definition of working

  • adds several more examples to ADAAA non-exhaustive list of major life activities such as sitting, reaching, and interacting with others;
  • states that a person is substantially limited in the major life activity of “working” if he or she has an impairment that limits his or her ability to perform, or to meet the qualifications for, the type of work at issue, not the more stringent “broad range” or “class” of jobs standard;
  • states“[w]hether an impairment substantially limits the major life activity of working must be construed broadly to the maximum extent permitted under the ADA and should not demand extensive analysis”’
  • states that the fact that an individual has obtained employment elsewhere is not dispositive of whether an individual is substantially limited in the ability to work;

Changes in the Analysis of “Record of” a disability

  • provides that the term “record of” shall be construed broadly and shall not require extensive analysis
  • states that this definition is satisfied in an individual has or had a substantially limiting impairment;
  • provides that whether an employer relied on the record of a disability is only relevant to the merits, i.e., whether the employer discriminated on the basis of a disability;

Changes in the Analysis of “Regarded As” Disabled

  • provides that the definition of “regarded as” is changed so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead provides that an applicant or employee who is subjected to an action prohibited by the ADA (e.g., failure to hire, denial of promotion, or termination) because of an actual or perceived impairment will meet the “regarded as” definition of disability, unless the impairment is both transitory and minor (i.e., expected to last 6 months or less);
  • provides that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation.

Other changes in the regulations include that “temporary, non-chronic impairments of short duration with little or no residual effects” usually will not be considered covered disabilities. Examples include, common cold, seasonal flu, sprained joints, and broken bones expected to heal completely (although an impairment may substantially limit a major life activity even if it lasts or is expected to last, fewer than six months). In addition, an employer that asks if an employee needs a reasonable accommodation will not be deemed to be “regarding” that employee as disabled. Well, at least there is some good news for employers!

The EEOC will receive public comments on the proposed regulations until November 23, 2009. After the public comment period, the EEOC will review the comments and make revisions to the proposal. The proposed final regulations will then be coordinated with certain federal agencies before final regulations are published in the Federal Register. There is no expected deadline for the publication of the final regulation.

Should you have any questions about the ADAAA or the proposed regulations, please contact the head of GDHM’s Employment Law Department, Susan Burton at 480-5738.