Summer 2011 Newsletter: ADA Issues
Regulations for ADA Amendments Act
The U.S. Equal Employment Opportunity Commission (EEOC) recently issued final regulations to implement the Americans with Disabilities Act Amendments Act (ADAAA). The language of the new regulations closely tracks the statute itself, which went into effect in January of 2009.
Although the EEOC’s new regulations are only applicable in the employment context, the ADAAA itself applies across all the titles of the ADA. Additionally, because of the relationship between the ADA and the Rehabilitation Act, the provisions of the ADAAA are relevant for entities covered under the Rehabilitation Act as well, including federal government agencies, federal contractors, and recipients of federal funding.
Congress passed the ADAAA to make it easier for individuals to meet the definition of disability and seek protection under the law. Court rulings in the years following the ADA’s passage had interpreted the definition very narrowly, and many individuals whom Congress originally intended to include were left outside the protection of the law.
The ADAAA and the EEOC’s regulations retain the ADA’s original definition of disability, but change the way some of the terms are interpreted and applied. Disability is still defined as a physical or mental impairment that substantially limits at least one major life activity; a person is protected if he currently has such an impairment or if he has a “record of” such an impairment from the past. The combined limitations of multiple impairments may also result in disability. Individuals who have current or past disabilities are entitled to reasonable accommodations that are related to their disabilities.
Additionally, an individual is protected if he/she is discriminated against based on an actual or perceived impairment, regardless of whether that impairment substantially limits a major life activity, as long as the impairment is not both minor and transitory. Transitory means the impairment lasts or is expected to last six months or less. Individuals who fall only into this “regarded as” category (and do not have either a current, actual disability or a record of a disability) are not entitled to reasonable accommodations.
The six-month time frame is only relevant to the “regarded as” category, and is not intended to guide the assessment of people who have current disabilities or records of past disabilities which may have a limited duration. The ADAAA also clarifies that impairments that are episodic or in remission are disabilities if they would be substantially limiting when active.
Major Life Activities
The ADAAA adds “the operation of a major bodily function” to the list of examples of major life activities. Bodily functions can include those of the immune system, special sense organs and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. All of these functions are added to the list of more established major life activities, such as caring for oneself, performing manual tasks, seeing, hearing, breathing, walking, standing, sitting, reaching, lifting, bending, speaking, sleeping, eating, learning, reading, thinking, concentrating, interacting with others, and working.
Prior to the passage of the ADAAA, “mitigating measures” (medications, therapies, assistive devices, compensating behaviors, etc.) were taken into consideration in the determination of whether an individual had a disability. Now, aside from “ordinary eyeglasses and contact lenses,” only the negative effects of mitigating measures should be considered; positive effects should be “factored out” and the individual should be viewed as if he did not use the mitigating measures.
For example: an individual with epilepsy takes medication that eliminates seizures, but the medication causes some tiredness and depression. The negative effects of the medicine (tiredness and depression) can be considered, but the positive effects (absence of seizures) should not be considered. For the purpose of assessing whether the individual meets the definition of disability, he should be viewed as if he experiences seizures as well as tiredness and depression.
It is irrelevant whether the individual declines to use mitigating measures that might reduce or eliminate the effects of the impairment. For example, a covered employer cannot refuse to provide a reasonable accommodation for an individual because he/she chooses not to take medication or use a device that might reduce the effects of the impairment. If a worker who is hard of hearing requests an amplification device for an office telephone, the employer should not refuse to provide it simply because it believes the worker should obtain a personal hearing aid. There may be a number of reasons the individual doesn’t get a hearing aid, but those are not the employer’s concern; the existing conditions must be addressed.
While all these factors play into the assessment of whether an individual meets the definition of disability, that assessment is often just the first step in a process of sorting out other matters, such as whether an individual is qualified, whether an accommodation is reasonable, whether an individual poses a direct threat to the health or safety of the individual or others, or whether discrimination occurred in a given situation. The intent of the ADAAA is to shift the focus of employers, individuals, and courts to these crucial matters by simplifying the disability determination.
Entities covered under the ADA or the Rehabilitation Act, particularly employers who deal with disability issues in the workplace, should review their policies, practices, and staff training needs to ensure compliance with the ADAAA.
|Check out: The EEOC’S new regulations, as well as a helpful fact sheet and “Q & A” documents . Contact the ADA Center with your questions! (1-800-949-4232 V/TTY or visit our Employers page)|
What to Do if You Think You are Being Discriminated Against in the Workplace
If you think you have been discriminated against in employment on the basis of disability, you should contact the U.S. Equal Employment Opportunity Commission. A charge of discrimination generally must be filed within 180 days of the alleged discrimination. You may have up to 300 days to file a charge if there is a state or local law that provides relief for discrimination on the basis of disability. However, to protect your rights, it is best to contact EEOC promptly if discrimination is suspected.
You may file a charge of discrimination on the basis of disability by contacting any EEOC field office, located in cities throughout the United States. If you have been discriminated against, you are entitled to a remedy that will place you in the position you would have been in, if the discrimination had never occurred. You may be entitled to hiring, promotion, reinstatement, back pay, or reasonable accommodation, including reassignment. You may also be entitled to attorney’s fees.
While the EEOC can only process charges based on the ADA, you may have greater and/or additional protection under state or local laws or by other federal laws. EEOC field offices can refer you to the agencies that enforce those laws.
|For information and instructions on reaching your local office, call: (800) 669-4000 (Voice) (800) 669-6820 (TTY) (In the Washington, D.C. 202 Area Code, call 202-663-4900 (voice) or 202-663-4494 (TTY)|