It's Here-The ADA Amendments Act. Are You Ready?
On May 24, 2011, the final implementing regulations of the ADA Amendments Act went into effect, significantly expanding protections for those who are disabled. A "disability" will now include a virtual plethora of maladies. “Major life activities” will now include sitting, reaching and interacting with others. “Major bodily functions” such as normal cell growth, brain functions, respiratory functions, and the operation of individual organs are also new to the ADA.
The final regulations actually list specific impairments - particularly mental impairments - that will almost always meet the definition of a disability, including: deafness, blindness, partially or completely missing limbs, autism, cancer, HIV, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia. There is no requirement that the impairment last a particular length of time in order to be considered “substantially limiting.” Moreover, if the impairment is episodic or in remission, it can still meet the definition of disability if the symptoms or effects would substantially limit a major life activity when the impairment is active. Another significant modification is that “mitigating factors” - such as the use of medication - may not be considered by employers in their evaluation of potential disabilities, except for glasses and contact lenses. Finally, the definition of “regarded as” disabled has broadened to the extent that the employee may not even be disabled – liability is tied to the employer’s conduct in perceiving the employee as such.
EEOC Commissioner Chai Feldblum, who joined the EEOC in April 2010, said, “I am confident that these regulations will work well for both people with disabilities and employers. It was our job as an agency to carry out the intent of this landmark law and I believe we have done so successfully.” Feldblum was one of the lead negotiators on the original ADA as well as on the Amendments Act.
The expansion of employee workplace rights continues, virtually unabated. It is estimated that over the next five years, 2 million to 6.1 million more workers will request reasonable accommodations and that these requests will cost employers between $60 million and $183 million. To ensure compliance with these new regulations, employers should be proactive and not wait for a claim to arise. With these new regulations, and the expansion of the definition of disability, employers must be aware that the EEOC’s objective is for the employer to focus on finding the appropriate accommodation for the employee, rather than focusing on whether or not the employee has an actual disability. Therefore, employers should implement or update their reasonable accommodation policies and train management to recognize an employee’s potential need for accommodation. Employers should also be aware of their responsibility to engage in an interactive process with the employee in order to discuss and facilitate a reasonable accommodation that would enable the employee to perform the essential functions of the job.
The materials contained in this Announcement are for informational purposes only and not for the purpose of providing legal advice. For advice about a particular problem or situation, please contact an attorney of your choice.