by Robert C. Ludolph, Esq.
In the two years since the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) became effective, employers have begun to experience its profound impact.
The EEOC reports that the number of disability discrimination charges has increased by nearly 30% in the past two years. That’s inevitably going to lead to more ADA lawsuits. And more of them will be jury trials, as it becomes more difficult for employers to obtain summary judgments in their favor.
Now the regulations for implementing the ADAAA have been finalized. Since courts generally defer to such reasonable administrative interpretations, these regulations will be an important factor in future ADA cases.
The result of new regulations: More employees will now be considered to be protected by the ADA.
New regs clarify ‘disability’
With the ADAAA, Congress expressly overruled several Supreme Court decisions that severely limited the ability of individuals to qualify as disabled.
An individual still must prove that he or she is a qualified individual with a disability who can perform—with or without reasonable accommodation—the essential functions of the specific job without creating undue hardship for the employer or a direct threat to him- or herself or others. The burdens of proof and the definitions of the terms “qualified,” “reasonable accommodation,” “undue hardship” and “direct threat” remain unchanged.
The ADAAA, however, significantly changes how the courts will interpret who has a disability.
The regulations clarify the definition of disability by identifying major life activities. The new regulations incorporate the major life activities listed in prior EEOC regulations including: caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. The ADAAA also includes a nonexclusive list of other activities such as: standing, lifting, eating, sleeping, reading, concentrating, thinking, communicating and executing any major bodily function. An impairment that substantially limits any of these major life activities is deemed a disability.
The regulations also create a list of per se disabilities, thereby discarding any individual and functional assessments.
Expect new view from courts
The regulations clarify the new “rules of construction,” requiring courts to adopt less-restrictive interpretations of disability claims. Individuals whose impairment substantially limits a major life activity will no longer have to prove that:
- They are unable to perform activities important to daily life
- Their impairment limits another major life activity
- They are unable to perform a broad range of jobs, only a “type of work”
- Their impairment substantially limits them in comparison to the general population based on scientific or medical evidence but rather based on a “common sense” approach
- Their impairment necessarily must last more than six months.
The regulations prohibit considering of the impact of mitigating measures (such as medication or corrective devices, except for eyeglasses and contact lenses) when determining whether an individual is disabled. Moreover, episodic impairments or conditions in remission, as long as the impairment is active, are nonetheless deemed to substantially limit a major life activity as disabilities.
Since the ADAAA virtually eliminates the possibility of any legal challenge to an individual’s impairment as a disability, the issue will be whether discrimination is the cause of the adverse employment action, not whether the individual is actually disabled.
Prepare for changes
In light of the final ADAAA regulations, you should take several steps:
- Review your job descriptions to ensure they fully detail each position’s essential functions.
- Review your procedures for engaging in a dialogue with applicants and employees about possible accommodations.
- Train supervisors to address how the organization can help an underperforming disabled employee perform his or her job. Note: Nothing in the ADAAA requires managers to tolerate bad behavior, insubordination or failure to achieve acceptable levels of performance.
- Document all communications with disabled employees to demonstrate your good-faith efforts to address their conditions.
Courts will continue to allow employers the discretion to choose among reasonable accommodations. You are not obligated to accept the accommodation the employee prefers. You are not required to create new jobs, relieve employees of essential functions or permanently reassign employees to light-duty positions.
Author: Robert C. Ludolph is of counsel in Pepper Hamilton LLP's Labor and Employment Pracfice Group. Contact him at email@example.com or (313) 393-7368.
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