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Determining Which Employees Are Disabled Under the New ADA Regulations

November 23, 2009
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Richard D. Alaniz

Wading into the depths of the Americans with Disabilities Act (ADA) of 1990 to determine who is disabled and who is not has never been a simple task for employers or their employees. On Jan. 1, amendments to the act took effect but the new amendments left many unanswered questions. Now, as instructed by Congress, the U.S. Equal Employment Opportunity Commission (EEOC) has proposed rules designed to bring some clarity to both employers and employees.

Whether that actually occurs remains to be seen, but it is imperative for companies to become familiar with the proposed rules, which represent some significant departures from the past. Why? Consider several scenarios and try to determine in which cases an employee is considered disabled and must be offered a “reasonable accommodation”:

A. An employee with post-traumatic stress disorder;

B. An employee with cancer who is currently in remission;

C. An employee with asthma that they treat with an inhaler; or

D. An employee who wears contact lenses.

According to the EEOC’s proposed rules, the answers are yes, yes, yes, and no. The rules are still being debated, but employers must make sure they understand which impairments may qualify as a disability, which may not, and how to determine what falls into either category.

THE REVISED ADA REGULATIONS

When the ADA Amendments Act (ADAAA) of 2008 took effect at the beginning of 2009, it brought some significant changes to the way that “disabilities” could be interpreted, even though it made few changes to the definition of a disability.

Under the ADAAA, a disability remains “an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment.”

However, the new law made several important changes, which have spurred the EEOC’s proposed rules. Those changes include:

• Expanding the definition of “major life activities” to include walking, reading, and many major bodily functions, such as the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

• Ordering employers to not consider “mitigating measures” other than regular eyeglasses or contact lenses when determining whether an individual has a disability.

• Clarifying that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when the impairment is active - that is, employees are disabled even if they are not showing symptoms of their disease, if the disease would qualify as a disability when the employee is experiencing symptoms.

THE EEOC WEIGHS IN

When the law was passed, the EEOC was directed to evaluate how employers should interpret the changes in the ADAAA with regard to employees and job applicants. In September, the commission did so when it issued its Notice of Proposed Rulemaking. According to the commission, the proposed rules - like the amended ADA - are meant to offer broad coverage to disabled individuals to the maximum extent allowed. The intent of the EEOC seems clear - the issue should be less about whether an employee or job applicant has a disability and more about whether discrimination has occurred.

The EEOC has also included a specific laundry list of impairments that “consistently meet” the definition of a disability - a list that is far more extensive than in the past. There are several other important aspects of the proposed rules, which are still being debated. Those aspects include:

• Along with the list of impairments that consistently meet the definition of a disability, the proposed rules include examples of impairments that require more analysis to determine whether they are, in fact, disabilities, since these impairments may cause more difficulties for some than others.

• Impairments that are episodic or in remission, including epilepsy, cancer, and many kinds of psychiatric impairments, are disabilities if they would “substantially limit” major life activities when active.

• “Major life activities” include 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, and working.

Three of these - reaching, interacting with others, and sitting - are seen for the first time in the proposed rules and are not listed in the ADAAA. This is not an exhaustive list, according to the commission.

The proposed rules also include a specific, non-exhaustive list of major bodily functions that constitute major life activities, including several - special sense organs and skin, genitourinary, cardiovascular, hemic, lymphatic and musculoskeletal - that are new under the EEOC proposed rules.

• The proposed rules change the definition of “substantially limits.” Under the new regulations, a person is regarded as disabled if an impairment substantially limits their ability to perform a major life activity compared to what “most people in the general population” could perform. This is a change from the old regulations, which define a disability as one that substantially limits how a person can perform a major life activity compared to how an “average person in the general population” can perform an activity.

According to the EEOC, an impairment doesn’t need to prevent or severely restrict an individual from performing a major life activity. Those tests were too demanding, according to the proposed rules. Now, employers should rely on a common-sense assessment, based on how an employee’s or applicant’s ability to perform a major life function compares with most people in the general population.

In good news for employers, the proposed rules do say that temporary, non-chronic impairments that do not last long and that leave little or no residual effects are usually not considered disabilities. Prior factors for considering whether an impairment is substantially limiting, such as the nature, severity, and duration of the impairment, as well as long-term and permanent effects, have been removed.

According to the EEOC, at most, an extra one million workers may consider themselves to be disabled under the proposed rules. While that may not seem like many to the commission, businesses must prepare themselves.

Education and communication are the most important steps employers can take to prevent discrimination lawsuits from those claiming disabilities. Employers must educate themselves about the proposed rules and how those may change when they are ultimately approved.

Employers must also educate their employees about changes to the ADA and the EEOC’s interpretation of the act. Human resources personnel, managers, and supervisors should be trained to respond to employees who seek a reasonable accommodation to their impairment. Employees should receive training so they know the correct channels to go through if they believe an impairment qualifies as a disability. Formalized training, with employee sign-offs, can help to protect employers from discrimination claims.

Employers should be working with legal counsel to update all of their training manuals and employee handbooks, in light of the new regulations and proposed rules.

With the shift to a broader definition of disability, employers must brace for the possibility of an increasing number of claims. They must also work to ensure that they are not inadvertently discriminating against anyone who now qualifies as disabled.

Publication date: 11/23/2009

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