New Regulations Expand Rights of the Disabled

Posted 06-08-2011

On May 24, 2011, final regulations implementing the Americans with Disabilities Act Amendments Act (ADAAA) went into effect. If you don’t have time to read hundreds of pages of regulations and comments, there’s an ADAAA Fact Sheet from the Equal Employment Opportunity Commission.

Still too long? Let’s get to the point: The ADAAA broadens the coverage of the ADA to shift the focus away from the determination of whether an employee or applicant has a disability. As the new regulations make clear:

[T]he “primary object of attention” in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations. As noted above, this means, for example, examining whether an employer has discriminated against an employee, including whether an employer has fulfilled its obligations with respect to providing a “reasonable accommodation” to an individual with a disability; or whether an employee has met his or her responsibilities under the ADA with respect to engaging in the reasonable accommodation “interactive process.”

This marks a major shift from the old practice of litigating over whether the employee even qualified for protection under the ADA. The new focus is on whether the person was qualified for the job, was discriminated against because of a disability, or whether the employer met its obligation to engage in the interactive process to identify reasonable accommodations.

Here are the highlights of these new regulations:

  • Employees and applicants who are not actually disabled can still claim the protection of the ADAAA if they can show that an employer “regarded” them as disabled.
  • An employer has “regarded” someone as disabled if it takes an employment action against him or her because of an actual or perceived physical or mental impairment, even if there is no actual disability.
  • There are no per se disabilities, but EEOC provides a list of conditions where “it should easily be concluded” that the person is disabled, including autism, cancer, and diabetes.
  • The definition of “substantial limitation” has been greatly broadened, so that impairments lasting less than six months can now be considered substantially limiting.
  • Employers have to provide reasonable accommodations to employees with a “record of” disability, but not to those merely “regarded” as disabled.
  • Workers whose medical conditions are controlled by medication or therapy may nevertheless be disabled.

What this means to you:

Now, perhaps more than ever, managers need to be trained to have a legal eye to spot the issues, and get guidance from upper management, HR, or Legal. That way, when medical and privacy issues come up, managers know how to proceed and how to help employees stay focused on the work at hand.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.


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About the Author:

Ann Kiernan has litigated claims of wrongful discharge and discrimination before state and federal courts and administrative matters before the New Jersey Division on Civil Rights, the National Labor Relations Board and the Equal Opportunity Employment Commission, representing both employers and employees. Ms. Kiernan co-hosted The Employee Rights Forum, a weekly radio call-in show reaching up to a half-million listeners in the New York metropolitan area, and her articles on employment law have been published in many books and magazines. Both as a firm partner and as a director, Ms. Kiernan gained solid experience in management and human resources compliance. She has worked with Fair Measures since 1997.