For a long time, there’s been a conflict in the workplace between employees and their employers, as to what classifies as a disability and requires reasonable accommodations. An individual should never be denied an employment opportunity because of a disability they have no control over. According to the recent changes to the Americans with Disabilities Act Amendments Act (ADAAA) by the EEOC, there’s about to be an increase in the number of employees that are classified as having a disability. The new regulations aim to improve some of the confusion over the Act. Employers need to make sure they are familiar with the changes and take the necessary steps to ensure their organization is in compliance with the Act before the changes come into effect.
The Americans with Disabilities Act Amendments Act
The regulations that have been published will come into effect on May 24th, 2011. The primary focus of the amendments is to open up the scope of what is considered a disability covered under the Act. The EEOC has also published guidance to help companies better understand:
- What is considered a disability under the Act
- Make it easier for people to establish that they are protected by the Act
- What companies can do to ensure compliance with the Act.
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According to the EEOC, there are three ways an employee can show they have a disability:
- A person may be disabled if he or she has a physical or mental condition that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning).
- A person may be disabled if he or she has a history of a disability (such as cancer that is in remission).
- A person may be disabled if he is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he does not have such an impairment).
What does this mean for employers?
Employers need to take the necessary steps to provide employees with reasonable accommodations – especially now that it will be easier for employees to claim that they have some sort of disability. The number of disabilities covered by the Act has increased to include cancer, epilepsy, HIV and more (in almost all cases). The EEOC makes it very clear that impairments that are episodic (ie. epilepsy) or in remission (ie. cancer) are considered disabilities under the Act if it “substantially limits” a major life activity when it is active – for example, when someone is receiving cancer treatments or an epileptic suffers seizures.
An important factor that now needs to be taken into consideration by employers is the issue of “temporary impairments”. Temporary impairments are impairments that have effects that are expected to last six months or less. During that time frame, the impairments can substantially limit an employee’s ability to do certain tasks. The EEOC has clearly defined impairment and “substantially limits”, as they apply to the ADA, to help employers and employees make sense of the Act.
The JD Supra article “EEOC Issues Final Regulations Implementing the ADA Amendments Act,” discusses additional changes to the regulations:
“Lastly, the regulations further Congress’s goal of expanding coverage for individuals that are “regarded as” having a disability by changing the legal inquiry away from what the employer believes about the nature of the impairment and instead focusing on how the person was treated by the employer. Under the new regulations, an individual need not prove that the employer believed that the individual’s impairment, or perceived impairment, was a “disability”; the individual need only show that he or she was subject to adverse action based on the impairment or perceived impairment. However, an employer may rebut a claim under this “regarded as” prong by showing that the impairment or perceived impairment is both transitory and minor.”
As of yet, it’s hard to say what impact these changes will have on the number of employee complaints or investigations companies will encounter. It’s advised that companies plan ahead and learn more about the new classifications of disabilities under the Act to ensure compliance and reduce the opportunities for complaints.