What the New ADAAA Regulations Mean for Your Business

Although a public commentary period for the proposed new regulations implementing the Americans With Disabilities Act Amendments Act (ADAAA) runs through Nov. 26, 2009, few observers expect the Equal Employment Opportunity Commission (EEOC) to make any major changes. Indeed, the EEOC has already updated its “Equal Employment Opportunity is the Law” poster to incorporate its ADAAA regulations as well as those for the Genetic Information Non-Discrimination Act (GINA).

What does this mean for affected employers, those with fifteen or more persons on staff?

The short answer is that many more employees will now be covered by the law and be able to claim a disability. Here are the background and details:

The ADAAA was written to restore the 1990 ADA’s original scope and intent that Congress felt had been whittled down over the years by court decisions. The EEOC regulations, however, go even further in broadening the definitions of disability and one of its key components, “major life activity.” What’s more (or worse, depending on your viewpoint), the EEOC now says that a case brought under the ADA should not focus on whether the individual has a disability, but on whether the individual has suffered any discrimination.

Under the ADA, a disability was defined as anything that substantially limits a major life activity. Now with the ADAAA and its regulations, the list of major life activities has been greatly expanded to include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, working, sitting, reaching and interacting with others. (The last three were specifically added by the regulations.)

The ADAAA also added a new major life activity category, that of major bodily functions, specifically: the immune system; digestive system; cell growth; neurological and brain functions; respiratory and circulatory systems; endocrine; and reproductive functions. The regulations then tacked on additional major bodily functions: hemic, lymphatic, musculoskeletal, special sense organs and skin, genitourinary, and cardiovascular.

Further easing the way for disability claims, the regulations call for a “common-sense assessment” that compares an individual’s ability to perform a specific life activity to the ability of most people in the population at large to do so. And finally, whereas the ADA standard for what limits the major life activity of working meant a “broad range” of jobs had to be affected, the ADAAA regulations say the limitation need only cover “the type of work at issue.”

The regulations get even more specific and list examples of impairments that will consistently meet the definition of a disability, to wit: blindness, deafness, intellectual disabilities, partially or completely missing limbs, mobility impairments requiring the use of a wheelchair, 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.

Furthermore, impairments that are episodic or in remission are nonetheless considered disabilities so long as they would substantially limit a major activity when active. The ameliorative effects of mitigating measures (with the sole exception being eye glasses) are also not to be considered in weighing a disability. In other words, an individual’s use of medication, prosthetics, hearing aids, cochlear implants, mobility devices and other medical supplies or equipment will not preclude an individual from claiming an impairment.

Employers get a couple of breaks in the regulations. First, a temporary or chronic impairment of a short duration, such as the flu, sprained joint or broken bone, will not normally be considered as limiting a major life activity. Second, episodic conditions that impose only minor limitations will not normally meet the definition of disability. Finally, individuals who are “regarded as” having a disability by their employers are not thereby entitled to a reasonable accommodation. However, if an employee falling into any of these categories is discriminated against in an adverse employment action, then an EEOC claim can be filed.

What should employers do to comply with these new regulations?

First off, it must be noted that the ADAAA and its regulations cover not only employees but job seekers as well, and employment law specialists foresee a jump in discrimination claims from turned-down job applications. An increase in claims for reasonable accommodations at work is also widely anticipated. As a result, employers can now be hit on two fronts, one representing job seekers, and the other employees (and former employees).

On the hiring front, human resource professionals are advising that job descriptions be carefully reviewed and reworded to avoid any legal entanglements through language that might be construed as discriminating against otherwise qualified candidates. Further, those doing the interviewing have to be extra careful not to ask questions that touch on health or impairment issues. Though no one is required by law to hire someone who is unqualified, you don’t want the courts to find that your firm is excluding people with disabilities or discriminating against them in the hiring process.

As for reasonable accommodations at work, both the ADAAA and implementing EEOC regulations explicitly state that little time will be spent determining if the disability is justified. Instead, the EEOC will focus on what actions were or were not taken by the employer when a reasonable accommodation was requested.

The burden of proof, then, is clearly shifting more and more onto the employer even as the EEOC flexes its muscles more and more. The agency’s 2010 budget has been increased by $40 million to fund more enforcement activities, and the pace of lawsuits has already increased dramatically in 2009. In one recent week alone, the EEOC filed 45 lawsuits. Not all of these lawsuits were disability-based, of course, but with the new ADAAA regulations coming into force, the agency is certain to ramp up its enforcement of disability laws.

In light of this, the operative phrase for employers is, as it always has been for Boy  Scouts: “Be prepared.”

Personnel Concepts, your trusted labor law compliance partner, has researched and crafted a muscular tool to help you implement these new regulations. Get your copy of our ADA Amendments Act Compliance Kit today, as well as our ADA Disability Discrimination Policy Poster to convey your compliance standards to your employees.

About the author:
Gary McCarty is a researcher and Web Content Manager for Personnel Concepts.

Note: The details in this white paper are provided for informational purposes solely. All answers are general in nature, not legal advice and not warranted or guaranteed. Readers are cautioned not to rely on this information. Because laws change over time and in different jurisdictions, it is imperative that you consult an attorney in your area regarding legal matters and an accountant regarding tax matters.