Employment: The Wait is Over… The Challenges Begin

05.01.11

In response to various court decisions and positions taken by the EEOC regarding the Americans with Disabilities Act of 1990, Congress passed the (cleverly-titled) Americans with Disabilities Act Amendments Act which went into effect January 1, 2009. Congress believed the law was not applied as broadly as it should have been, and directed the EEOC to issue new regulations consistent with that view. Accordingly, the ADAAA and the regulations repeatedly comment that the law should be interpreted to provide broad coverage to persons and that the determination of whether an individual has a disability should not require extensive analysis.

What does this mean for you day-to-day? It means your handling of requests for accommodation is more important than whether or not the employee making the request is an individual with a disability. The words of the EEOC words regarding how this law should be interpreted are worth noting:

The primary purpose of the Amendments Act was to make it easier for people with disabilities to obtain protection under the ADA. ...

The ADAAA and the EEOC's regulations also make clear that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, not whether the individual meets the definition of disability. ... This means, for example, examining whether an employer has discriminated against an employee, including whether an employer has fulfilled its obligations with respect to providing a "reasonable accommodation" to an individual with a disability; or whether an employee has met his or responsibilities under the ADA with respect to engaging in the reasonable accommodation "interactive process."

In other words, we will focus on the way you work with your employees to identify a reasonable accommodation, rather than whether the employee has a disability.

What is a disability?

To illustrate the ADAAA's approach to cover more not less, the EEOC has greatly expanded the definition of disability. The basic premise did not change. A person is covered if he is a qualified individual (i) with a physical or mental impairment that substantially limits one or more major life activity, (ii) with a record of a disability, or (iii) who is perceived as having a disability.

Physical or mental impairment that substantially limits one or more major life activities. What constitutes an impairment is the most expanded definition under the new regulations. It includes any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or any mental or psychological disorder, such as intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

The regulations also expand the definition of major life activities to include, but not limited to caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, working; and the operation of major bodily functions, including 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.

NOTE: One of the big changes in the law is the elimination of the employer's ability to look to "mitigating measures" to determine if someone had a disability. The new regulations specifically state that a person's status is not to be judged by how well they are doing with medical treatment. With the exception of ordinary eyeglasses, a person with, for example, diabetes which is totally controlled and has no everyday impact will be found to be an individual with a disability under the ADAAA.

Advice: Until the courts sort some of this out, the cautious employer will give all deference to an employee's claim of disability and focus its efforts on resolving the employee's request for accommodation.

Record of a Disability. This element of the regulations is certainly easier to understand. If a person has a record or history of a disability, that person is covered by the law and entitled to be free of employment discrimination based upon that record. The regulations clarify that this protection exists even if the record is incorrect.

Regarded as a person with a Disability. This is the trickiest of all categories for an employer. This provision prohibits an employer from discriminating against, or adversely affecting an individual because the employer "regards" the individual as a person with a disability. The most important thing to remember to minimize claims under this section is to presume nothing! This is much easier said than done, especially with the close working relationships we have in the workplace. If you are in management or HR, however, you are simply not allowed to presume someone is in need of any help, even if your intentions are kind.

NOTE: This is the only category of discrimination that does not require an employer to reasonably accommodate the perceived disability. So, if you can tear yourself away from various internet diagnosis sites, you may be able to curtail liability in this area.

What do I have to do?

Under the law, an employer must provide a "reasonable accommodation" to an otherwise qualified individual with a disability or an otherwise qualified individual with a record of a disability.

Qualified. The person must be qualified. This means the person satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, and can perform the essential functions of such position. In other words, if you require a college degree, you can still require a college degree. If you require 5 years of experience, you can still require 5 years of experience. But, you should clearly state those requirements in advance or you may face questions of whether the "requirements" are legitimate.

Reasonable Accommodation. The million-dollar question. The definition of reasonable accommodation has not changed. But with the focus now shifted away from determining whether or not the employee is disabled, we can expect to see the courts pay much more attention to this element of an ADA claim. Hopefully, the courts will provide more guidance.

Where do I get more information?

If you would like to read the full regulations, you can click here.

Additionally, you may want to attend a workshop (one listed below for your convenience) or set up an appointment with employment legal counsel to discuss your specific situation and how, if any, the new regulations may require your business to adapt. Please let us know if we can be of any help.

By Kristen L. Brightmire, kbrightmire@dsda.com

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Rebecca D. Bullard

Rebecca D. Bullard

Rebecca represents clients primarily in labor and employment
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