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Final ADA Regulations Spell out Disabilities

The regulations, like the new law, reflect a dramatic shift in the management of the disabled in the workplace. With the definition of a disability now significantly broadened, here's what HR leaders need to know about the changes.

Friday, April 8, 2011
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It doesn't usually take two years for the final regulations for a new law to go into effect.

So a cheer went up when the U.S. Equal Employment Opportunity Commission published the long-awaited final regulations for the Americans with Disabilities Amendments Act of 2008, on March 24, scheduled to take effect in May.

The regulations, like the new law, reflect a dramatic shift in the management of the disabled in the workplace. The definition of a disability is significantly broadened, to discourage employers from challenging claims and to encourage them to provide reasonable accommodation.

"The ADAAA is a very important civil rights law," said EEOC chair Jacqueline A. Berrien in a statement. "The regulations developed by the Commission to implement the ADAAA clarify the requirements of the law for all stakeholders, which is one of the Commission's most important responsibilities."

The threshold as to who is disabled is being set very low, says attorney Daniel Schwartz of Pullman & Comley firm in Hartford, Conn. "From the EEOC perspective, they view most individuals with any impairment as qualifying ... . These regulations only emphasize that most employers are going to need to assume employees meet the definition [of disabled]."

Congress passed the Amendments Act in 2008 to swing the definition of disability back to the original intent of the ADA. Since the ADA was passed in 1990, many businesses have challenged claims of disabilities in court -- and usually won. The U.S. Supreme Court, in rulings like Sutton v. United Airlines Inc. and Toyota Motors Manufacturing Kentucky, Inc. v. Williams, whittled away at the definition so much that, according to the EEOC, ailments like cancer, epilepsy and diabetes were excluded.

The Amendments Act went into effect on Jan. 1, 2009, but the regulations were delayed because an early version generated an outcry from the business community, and well more than 600 public comments.

The biggest complaint was that the regulations listed certain physical and mental impairments as unequivocal "categorical" or "per se" disabilities.

"From an employer's perspective, [the original regulations] were controversial. They expanded the scope of coverage dramatically," says attorney Larry Lorber of Prosauker in Washington.

The EEOC replaced the objectionable terms; the regulations now say that some impairments virtually always constitute a disability, such as epilepsy, diabetes, cancer, HIV infection and bipolar disorder.

"They came full circle," he says. "The final set [of regulations] generally mirrors the statute. They simply adopted the definitions in the statute and added some."

The U.S. Chamber of Commerce is satisfied with the final result. In a March 24 press release, the Chamber stated: "The [EEOC] Commission is to be commended for undertaking the hard work needed to reach bipartisan agreement that has been a hallmark of the Americans with Disabilities Act for the last two decades ... . [It] is clear that the commission gave substantive consideration to our comments and those of other stakeholders."

In general, a disability is now defined as three so-called "prongs": a physical or mental impairment that "substantially limits" one or more major life activity; a record or past history of such an impairment; and/or being "regarded as" having a disability by an employer whether you have one or not, usually in terms of hiring, firing or demotion.

The big change is that the list of major life activities that determine a disability now includes, not just outward activities like seeing and breathing, but internal "major bodily functions," like neurological, immune, endocrine and normal cell growth. That means a person is now considered disabled not just because he or she can't DO something, but because he or she has a medical condition, whether or not it impairs functioning.

In addition, a person is considered disabled in spite of any corrective measures he or she uses, like a wheelchair or medication; the only exception is ordinary eyeglasses and contact lenses.

And "episodic" impairments, such as epilepsy and cancer in remission, are disabilities if they would be limiting when active.

Finally, the new regulations broaden the circumstances under which an employer would be liable for "regarding" an employee as disabled in terms of hiring, firing and demotions.

 

For HR staff, the focus has changed from proving whether a worker has a disability, to working together to create a reasonable accommodation.

"Under the old law, there was always a battle [over whether an individual was] disabled," says attorney Audra Hamilton with the firm Glass Wilkin in Tulsa, Oklahoma. "The first line of attack, as an attorney, was, 'He can do these things.' We would fight and win a lot. Now, [HR no longer spends] a lot of time battling on whether they are [disabled] or not. ... If they are able to establish impairment, guess what? They're disabled. Move on to what are they are requiring you to do for them, and go on from there."

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 In the past, employers won more than 90 percent of the time when they challenged whether a worker was disabled under the ADA, says attorney Jonathan Mook, with the DiMuroGinsberg firm in Alexandria, Virginia.

 "Given the broader definition of who is disabled, the real focus of the ADA now is not so much who is disabled, but ... on accommodating individuals with medical conditions, and making the assessment if they can perform [their duties] ... and if safety issues arise," Mook says.

HR professionals and frontline staff must be trained to be familiar with the newest ADA regulations, stresses Schwartz. "A lot of employers don't intentionally discriminate, but they don't know what to do and throw up their hands. ... You've got to take some action and figure out what accommodations are best [for the individual]."

Schwartz advises HR executives to update their policies and practices, make sure employees know where to turn with questions, and make sure supervisors have the answers.

"The EEOC anticipates there will be an increase in reasonable accommodation requests. It's almost impossible to calculate. ... One study said maybe 16 percent of employees [with disabilities] would need accommodation," Schwartz says.

The emphasis on reasonable accommodations means a new HR focus on documentation and job descriptions.

Mook advises employers to review and update their job descriptions to make sure they are detailed and accurate. And HR staff should document all discussions they have about reasonable accommodations.

Fortunately, the definition of reasonable accommodations has not changed. The ball is still in HR's court, but there has to be an interactive process, Lorber says.

"HR has to engage in a legitimate, interactive process [to determine] if the accommodation is appropriate," Lorber says. "HR people have to keep very good records as to what accommodations they gave to others. A logbook of accommodations is helpful.

"For the HR world, [the Amendments Act] has been a major successful change," he says. "This statute has been in effect over two years. There have been a lot of cases. HR [professionals] have a pretty good idea what was intended: No more legal fights over [whether someone is] disabled. It's moved the whole ADA analysis ... away from litigation to HR functions."

       

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