LAW OFFICE OF LORI A. GOLDSTEIN

CLIENT BULLETIN   April 2011

Employers Face Increased Obligations,

Risk under Amended ADA Regulations

Last month, the federal Equal Employment Opportunity Commission (“EEOC”) issued final regulations under the ADA Amendments Act of 2008 (“ADAAA.”)  The statute and regulations change the definition of “disability” and shift the focus from whether an individual is disabled to whether discrimination occurred. The key changes expand the list of major life activities, lower the bar for finding a substantial limitation, clarify that episodic impairments or those in remission may be disabilities, and require employers to disregard the positive effects of mitigating measures.  Employers must focus on reasonable accommodations, and on whether an individual with a physical or mental condition is otherwise qualified to perform essential job functions. Employers should reassess job descriptions, job qualifications, testing procedures, and sick and medical leave policies. Documentation and training will also be essential.

History

The ADAAA was enacted on September 25, 2008, and became effective on January 1, 2009. The amendments apply to employers, as well as to federal agencies and contractors and recipients of federal financial assistance. The regulations will become effective on May 24, 2011.

The ADAAA’s purpose is to reinstate a “broad scope of protection.” Congress determined that people with many types of impairments – including epilepsy, diabetes, multiple sclerosis, major depression, and bipolar disorder – had difficulty meeting theADA’s definition of disability.  The final regulations retain theADA’s three-part definition of “disability”: (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record (or past history) of such an impairment; or (3) being regarded as having a disability. However, the interpretation of the definition has broadened.

EEOC Lists Conditions That Are Virtually Per Se Disabilities

For the first time, the EEOC has listed conditions that are not technically “per se” disabilities, but will “virtually always” be covered impairments: deafness, blindness, intellectual disability (formerly 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. While the EEOC states that theADA’s original case-by-case approach remains, by listing conditions that are substantially limiting, the agency has effectively changed this.

Major Life Activities Added

Final regulations list examples of major life activities, adding sleeping, concentrating, thinking, communicating, sitting, reaching and interacting with others to the original list of: caring for oneself, performing manual tasks, seeing, hearing, eating, , walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, interacting with others, and working.

The EEOC also extends the concept of “major life activities” to include “the operation of major bodily functions” such as the “immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” The “major bodily functions” of the special sense organs, skin, genitourinary, cardiovascular, hemic, lymphatic and musculoskeletal systems, were also added.

A New Broadened Interpretation to “Substantially Limits”

The final regulations adopt “rules of construction” to determine if an individual is substantially limited in performing a major life activity, including the following:

       – An impairment need not prevent or severely or significantly limit a major life activity to be considered “substantially limiting.” Nonetheless, not every impairment will constitute a disability.

       – The term “substantially limits” should be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of theADA.

       – The determination of whether an impairment substantially limits a major life activity requires an individualized assessment.

       – The primary focus of theADAis on whether discrimination occurred; the determination of disability should not require extensive analysis.

       – Although determination of whether an impairment substantially limits a major life activity as compared to most people will not usually require scientific, medical, or statistical evidence, such evidence may be used if appropriate.

Temporary Impairments Are Protected

Now even impairments that are transitory  (i.e. will last fewer than six months) and minor can be substantially limiting. The ADAAA and final regulations state that an impairment that is episodic or in remission meets the definition of disability if it would substantially limit a major life activity when active. The regulations’ appendix provides examples, including epilepsy, hypertension, asthma, diabetes, major depressive disorder, bipolar disorder, and schizophrenia. An impairment such as cancer that is in remission but that may possibly return in a substantially limiting form will also be a disability.

Cannot Consider Mitigating Measures to Determine Disability

In determining whether someone is disabled – based on the impact of his impairment on the performance of a major life activity – employers can no longer  consider mitigating measures (such as insulin for diabetics), except for ordinary eyeglasses or contact lenses. But, all otherADA determinations – including the need for a reasonable accommodation and whether an individual poses a direct threat – can take into account both the positive and negative effects and burdens of a mitigating measure.

“Regarded As” Analysis Broader

ADAAA expressly expanded the “regarded as disabled” analysis by prohibiting discrimination based on the employer’s alleged perception of a mental or physical impairment, even if the perceived impairment is not an actual disability.

Also, while there is no duty to accommodate those “regarded as” having a disability, the new regulations require employers to reasonably accommodate those with a “record of” disability, absent undue hardship.  How or why to accommodate an individual with a past, but no current, disability is questionable.

Employers’ Takeaway From New Regulations

The expanded approach of the regulations means that employers may find it more difficult to handle workplaceADAsituations and may risk additional claims. Successfully defendingADAclaims on the basis that an individual is not disabled will be less common. By listing conditions that are “virtually always” disabling, including temporary impairments, and extending major life activities and the definitions of “substantially limits” and “regarded as,” the EEOC has broadened the rights of the disabled and the obligations of employers.

Employers must focus on reasonable accommodation, and on whether an individual with a physical or mental condition is qualified to perform essential job functions, with or without reasonable accommodation. Companies should re-evaluate job duties and job descriptions, hire and testing procedures, and attendance and absence policies, to ensure that they are legitimate, nondiscriminatory and satisfy the “business necessity” standard.

Management training will be crucial to make sure key staff knows how to conduct an interactive dialogue to evaluate reasonable accommodation requests. Employers should ensure that decisions are properly documented, and supported by objective evidence.

For assistance with workplace issues concerning your company’s rights and obligations as to disabled employees or  regarding other personnel issues, please contact Lori Goldstein at (847) 624-6640 or lori.a.goldstein@gmail.com.

 

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