In yesterday’s Advisor, Leslie Silverman talked employers through changes at EEOC and OFCCP. Today, her tips for complying with the new ADA—ADAAA (ADA Amendments Act), which became effective January 1, 2009.
Silverman, a partner at Proskauer, LLP, in Washington, D.C., and former vice chair of the Equal Employment Opportunity Commission (EEOC), offered her take on the ADAAA at the Society for Human Resource Management’s Employment Law and Legislative Conference held recently in Washington, D.C.
The ADAAA, Silverman says:
- Clarified the disability definition found in the ADA,
- Broadened the number of individuals covered under the ADA,
- Shifted focus from coverage to accommodation and access, and
- Enhanced focus on the “regarded as” prong.
The proposed regulations implementing ADAAA:
- Create a per se list of physical and mental impairments that “consistently” qualify as disabilities (contrary to the original ADA’s rejection of “per se” disabilities).
- Clarify what it means for an impairment to “substantially limit” a major life activity or major bodily function.
- Explain that impairments must be evaluated without regard to the ameliorative effects of “mitigating measures.”
- Discuss disabilities that are episodic or in remission, such as epilepsy, cancer, and many kinds of psychiatric impairments.
- Broadens the analysis for determining whether an individual is substantially limited in the “major life activity of working.”
Major Life Activity of Working
The new standard under the ADAAA only requires an individual be unable to perform a “type of work,” taking into account the nature of the individual’s work and job-related requirements, to be substantially limited in the “major life activity of working.”
This new standard replaces the previous standard, which required a determination as to whether an individual was substantially limited from working a “class” or “broad range” of jobs, Silverman notes.
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What’s Particularly Important for Employers?
Silverman recommends that employers take a look at three things:
1. Job descriptions. Job descriptions are now “incredibly important,” Silverman says. Because job descriptions are often the starting point for individualized assessments regarding disabilities, they should be reviewed and updated regularly to ensure that they include all the essential functions of the position.
Job descriptions are one of the first places OFCCP will look, she says.
2. Policies. Do a policy review, Silverman suggests:
- Check employee handbooks, a good place to start your review.
- Make sure policies, practices, and processes are evaluated and revised, if necessary, and implemented to reflect the requirements of the laws and regulations.
3. Training. Remember that HR people know about ADA compliance issues, but how about everyone else?
Train on who is a qualified individual with a disability, accommodation, etc.
Be aware that a larger group of employees may now qualify for protection under the law and may request reasonable accommodations, Silverman says.
We all agree with Silverman that training is critical, but for many in HR, it’s hard to get it going. To train effectively, you need a program that’s easy for you to deliver and that requires little time from busy schedules. Also, if you’re like most companies in these tight budget days, you need a program that’s reasonable in cost.
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