Although the new regs issued in March 2011 do cover a lot of ground with regard to what is a disability, basically, "They want you to skip the step of determining whether there's a disability," says Al Vreeland, AEIS panelist and shareholder in Lehr Middlebrooks & Vreeland P.C., in Birmingham, Alabama.
The other panelists included Susan Fentin, partner at Skoler, Abbott & Presser, P.C. in Springfield, Massachusetts, Charles Plumb, shareholder at McAfee& Taft in Tulsa, Oklahoma. (All panelists are members of the Employers Counsel Network.)
The ADAAA has vastly expanded the number of employees who will be able to claim that they are disabled, says Fentin. The goal of the ADAAA was to give employers "predictable, consistent, and workable standards" to determine whether an individual is "substantially limited." The regulation notes that:
The regulation says that determination of a disability should not require extensive analysis. "Don't spend a lot of time on this," says Fentin.
The new regulation does not provide a list of impairments, but does offer a long list of body systems that could be affected by impairment. For example, Fentin says, it lists the reproductive system, so fertility treatments might qualify.
There's also a long list of major life activities, including concentrating, communicating, and interacting with others, In addition, there's a list of bodily functions. The "condition, manner, and duration" of an impairment is still relevant in "certain cases," but that's going to be very few, Fentin says. For example, a broken leg would not normally be considered, but there's always the possibility of infection or other complications.
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The bottom line seems to be that EEOC wants employers to focus on the accommodation piece, not the "is-it-a-disability" piece.
Regarded as claims ("You took action against me because you perceived that I had a disability) will be easier to plead and prove under the new regulation, says Fentin. And the only defense is that you didn't know or suspect. ("Transitory or minor" is a defense but only if it is an objectively reasonable belief, Fentin adds.)
Reasonable accommodations and the ADA—never easy, but certainly not your only challenge. In HR, if it's not one thing, it's another. Like FMLA intermittent leave, overtime hassles, ADA accommodation, and then on top of that whatever the agencies and courts throw in your way.
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