By: Melanie Berkowitz, Esq.
Employers: do you have any employees with disabilities covered by the Americans with Disabilities Act (ADA)? Don’t answer “no” too quickly; today, the notion of “disability” at work goes well beyond an employee who is wheelchair-bound, blind or deaf.
And since 2009, when Congress enacted the Americans with Disabilities Act Amendments Act (ADAAA), the definition of disability has further expanded to include a broad range of physical and mental impairments.
On May 24, 2011, the EEOC’s long-awaited regulations interpreting the ADAAA go into effect. Although the ADAAA regulations do not really change employers’ responsibilities with respect to disabled employees, the expansion of the definition of disability greatly increases the likelihood that a business will employ one or more disabled workers. Thus, it is vitally important that all employers know their responsibilities if they are confronted with a disabled employee, be aware of employment laws and stay informed about disability hiring trends that enable you to maintain a legal hiring process.
As before the amendment, an employer must still not discriminate against a worker because he or she is disabled and must reasonably accommodate an employee’s disability to allow him or her to perform essential job functions.
To assist employers, the EEOC has published a fact sheet and a list of frequently asked EEOC questions about the changes.
The regulations maintain the ADA’s definition of the term “disability”; it still means “a physical or mental impairment that substantially limits one or more major life activities; a record (or past history) of such an impairment; or being regarded as having a disability.”
As a general rule, employers need to remember that most (but not all) impairments are now going to be considered disabilities under the ADA. Long, drawn-out discussions about whether an impaired employee is disabled will be frowned upon by the courts.
Below is a summary of the major points of the new regulations. For a full explanation of the ADA and the ADAAA, employers should review the EEOC’s website.
Definition of “Substantially Limits”
Under the regulations, the EEOC urges a broad construction of what level of impairment substantially limits a major life activity:
- An impairment does not need to completely prevent or severely or significantly restrict a major life activity to be considered “substantially limiting.” Instead, employers should consider whether the impairment makes it more difficult for the employee to perform a major life activity than someone in the ordinary population.
- Employers must make an individual assessment for each employee to determine if an impairment is substantially limiting. However, the determination should not require an extensive analysis.
- Except for ordinary eyeglasses or contacts, the question of whether an impairment is substantially limiting must be made without considering mitigating measures such as medication or hearing aids.
- An impairment that is in remission or episodic (such as epilepsy) is a disability if it is substantially limiting when active.
- Not every impairment (but many more than before) will be considered substantially limiting.
What Does it Mean to Be “Regarded As” Having a Disability?
Prior to the law’s amendment, an employer had to perceive an employee as being actually disabled to violate the “regarded as” prong of the law. Now, however, the focus is on how the employer treated the employee with regard to his or her impairment, not whether the employer believed the impairment was an actual disability.
Thus, it is a violation if an employer takes an action against an employee because of his or her impairment, even if the employer does not believe the impairment is substantially limiting. The only exception is for impairments that are minor and transitory (lasting less than six months.) It is not a violation of the “regarded as” part of the law if an employer takes action against an employee with a minor impairment.
Note on “regarded as”: The regulations clarify that an employee must have an actual disability or a record of disability to qualify for a reasonable accommodation. Employees who are only “regarded as” being disabled are not entitled to reasonable accommodation.
What are “Major Life Activities”?
The regulations also expand the list of major life activities than an impairment might substantially limit. Additions to the list include sitting, reaching and interacting with others.
Following the ADAAA, the regulations also now include a non-exhaustive list of bodily functions as major life activities, including functions of the immune system, operation of individual organs within a body system, digestive, bowel neurological and brain functions, among others.
The expansion of the concept of “major life activity” and introduction of “major bodily function” into the law and regulations means that more employees will be able to demonstrate they are disabled.
Employers should realize that, particularly with impairments that substantially limit major bodily functions, an employee may be considered disabled even if the impairment does not affect his or her day-to-day activities.
Additional ADA Changes
The initial version of the EEOC regulations contained a list of impairments that would “consistently,” “sometimes,” or “usually not” be disabilities.
The final version of the regulations removed this list and instead provides nine rules of construction (at Sec, 1630.2(j)(I)) for determining if an impairment is a disability.
However, the law and regulations do describe a number of impairments that, under the new rules, will nearly always be considered disabilities.