EEOC Revises Americans with Disabilities Act Regulations
April 15, 2011
by Richard L. Connors
Stinson Morrison Hecker LLP
Copyright © 2011
New regulations to implement the ADA Amendments Act (ADAAA) were issued by the U.S. Equal Employment Opportunity Commission (EEOC) on March 25, 2011. The new rules are "designed to simplify the determination of who has a 'disability' and make it easier for people to establish that they are protected by the Americans with Disabilities Act (ADA)."
Disability Broadly Defined – The ADAAA went into effect on January 1, 2009, and "overtuned several Supreme Court decisions that Congress believed had interpreted the definition of 'disability' too narrowly, resulting in a denial of protection for many individuals with impairments such as cancer, diabetes or epilepsy. The ADAAA states that the definition of disability should be interpreted in favor of broad coverage of individuals."
Three-Pronged Approach – "The ADAAA and the final regulations define a disability using a three-pronged approach: (1) a physical or mental impairment that substantially limits one or more major life activities (sometimes referred to in the regulations as an 'actual disability'); or (2) a record of a physical or mental impairment that substantially limited a major life activity ('record of'); or (3) when a covered entity takes an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory and minor ('regarded as)."
Must Still be Qualified – "The ADAAA does not change the requirement that an individual with a disability be 'qualified' for a job. An individual is qualified for a job if he or she can meet a job’s general requirements – e.g., skills, education, experience – and can perform the essential job duties, with or without reasonable accommodation."
Reasonable Accommodation – "Nearly all of the ADAAA’s changes only affect the definition" of 'disability' – and does not change the definition of 'qualified,' 'direct threat,' 'reasonable accommodation,' or 'undue hardship,' or the burdens of proof applicable to each one. The only provision in the ADAAA affecting the reasonable accommodation obligation is that a covered entity does not have to provide one to an individual who only meets the 'regarded as' definition of disability."
What ADAAA Does Not Change
Illegal Use of Drugs – A business may still refuse to hire or discharge someone because he or she is "currently engaging" in the illegal use of drugs. However, “a person who no longer engages in the illegal use of drugs may be an individual with a disability if he has successfully completed a supervised drug rehab program or has otherwise been rehabilitated successfully, or is participating in a supervised rehab program (e.g. Alcoholics Anonymous)."
Workers Compensation – "The ADAAA and the regulations specifically state that changes to the ADA do not alter the standards for determining eligibility for benefits under State workers’ compensation laws or under Federal and State disability benefit programs."
Process for Providing Reasonable Accommodations – The process for providing reasonable accommodation has not changed as a result of the ADAAA. "Generally, a person with a disability still has to make a request for an accommodation, and an interactive process between the person with a disability and the employer may still be necessary to determine an appropriate accommodation. As part of this process, an employer may still ask for reasonable documentation showing a disability and a need for a reasonable accommodation where the disability and need for accommodation are not obvious or already known. However, since the definition of disability has been broadened, documentation may focus less on whether the person has a disability and more on the need for an accommodation. Finally, an employer is not required to provide an accommodation that would cause the employer an undue hardship -- meaning significant expense or difficulty."
Employee who Poses a Health or Safety Risk – "An employer does not have to employ a person who poses a 'direct threat' meaning significant risk of substantial harm to the health or safety of the individual or others. However, this is a stringent standard requiring an individualized assessment of the risks posed by a specific person with a disability in a particular job. An employer cannot rely on generalized information about a disability, or on myths, fears, or stereotypes about a disability when excluding someone on the basis of health or safety concerns."
Pregnancy – Under the ADAAA, "pregnancy is not an impairment and therefore cannot be a disability."
In Sum - The new ADAAA regulations will become effective on May 24, 2011. The EEOC has released an ADAAA fact sheet and two Questions-and-Answer documents about the regulations to aid employers – including small business – in understanding the law and the new regulations.
Richard L. Connors is an attorney with Stinson Morrison Hecker LLP, one of the country's largest law firms with more than 300 attorneys in more than 45-industry-focused areas. Mr. Connors represents management exclusively in employment and labor law.
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