Written by Tricia G. Tomich, Esq.
The recent March, 2011 publication of the final EEOC regulations for the amended ADA, is a reminder for employers of the expanding coverage of the ADA. The amendment to the statute and the newly issued EEOC final regulations greatly expand the pool of employees who may be eligible to receive protection from discrimination because of their disabilities.
The current expansion in coverage is due to the expanded interpretation of “disability” under the statute. A “disability” under the ADA is a mental or physical impairment that substantially limits a major life activity.[1] Under the new rules “disability” is to be construed in favor of “broad” coverage.[2]
Prior to enactment of the 2008 amendments and the 2011 regulations, the issue of what constituted a “major life activity” was a detailed factual inquiry. However, the recent amendments provide that “major life activities, by definition, include, but are not limited to, “caring for oneself, performing manual tasks, seeing, hearing, eating , sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.[3] The revised ADA also considers the functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory circulatory endocrine and reproductive functions to be “major life activities”. [4] Thus if an employee has an impairment to any of the foregoing bodily systems, Courts may now consider that the impairment affects a major life activity.
An impairment affecting a major life activity will be a “disability” if it “substantially limits” the employee. In analyzing whether the impairment of the major life activity is substantially limiting, ameliorating mitigating measures such as medications, prosthetics, hearing aids, etc. will no longer be considered. The employee will be evaluated according to how limiting the impairment would be in the absence of the correcting factor.[5] Eyeglasses are the one identified exception. [6] Further, if the condition is in remission, it will be analyzed according to how substantially limiting the impairment would be if it was not in remission.[7]
Due to this expansion of the definition of “disability,” employers should assume that an employee with an impairment may be potentially “disabled” under the ADA. If the employer contemplates an adverse action involving the employee, the employer should be sure there is a legitimate reason for the adverse action and that the reason is adequately documented.
Even if the employee is not actually disabled, he may have protection if the employer nevertheless “perceives” that he is disabled or if the employee has a “record of being disabled.” [8] If an employee meets the definition of “being regarded as having an impairment,” and has been subjected to an adverse action because of this perception, under the new rules he does not need to establish that that the perceived disability would have substantially limited a major life activity. It is enough that an adverse action was taken against him because of a “perceived” impairment. However, he does need to establish that the duration of the “impairment” was at least six months.[9]
Even if no adverse action is contemplated, the employee still may request an accommodation for his impairment to enable him to successfully perform his work. Examples of accommodation include, for example, unpaid leave, job restructuring, working from home, modified work schedule, shift change, reassignment to a vacant position, provision of an interpreter, making facilities accessible, provision of ergonomic chair.[10] Once an impaired, and potentially disabled, employee requests an accommodation, the employer has a duty to engage in an “interactive process” with the employee to determine what accommodation is needed that can be provided by the employer without “undue hardship.” [11] An employer, absent undue hardship, is required to provide an accommodation to an employee who is “disabled” or has a “record of a disability.” An employer is not required to accommodate based on a “perceived” disability.[12]
Employers should also be aware that ADA issues may be implicated when an employee has a workers’ compensation claim, or has a serious health condition which must be addressed under the Family Medical leave act.
In enacting the ADA amendments and advising the EEOC to revise its regulations, Congress has expressed its intent that the courts not interpret “disability” under the ADA narrowly as they had been doing, but to give the ADA “disability” a more expansive reading to assure that employees with impairments are not impeded in their ability to work. Employers are reminded to take note.
[1] 42 U.S.C. 12102(1)A).
[2] 42 U.S.C. 12102(4)(A).
[3] 42 U.S.C. 12102 (2)(A).
[4] 42 U.S.C. 12102 (2)(B).
[5] 42 U.S.C. 12102 (4)(E)(i)(I-IV)
[6] 42 U.S.C 12102(4(E)(ii).
[7] 42 U.S.C. 12102(4)(1)(D)
[8] 42 U.S.C. 12102(1)(B) and (C).
[9] 42 U.S.C. 12102(3)(A) and (B).
[10] 29 CFR 1630.2(O)(2).
[12] 29 CFR 1630.9(c) and (e).
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