Topic: E-pinions
By Stephen D. Bruce, PHR
Editor, HR Daily Advisor
Just My E-pinion
Last year, EEOC logged 25,000 charge filings for ADA violations—and that’s all before the new regs the EEOC issued today; these new regs are expected to make it much easier for employees to claim protected status. Here are some excerpts from the EEOC’s Q&A on the new rules.
Why did Congress pass the ADAAA?
Among the purposes of the ADA Amendments Act (ADAAA) is the reinstatement of a “broad scope of protection” by expanding the definition of the term “disability.” Congress found that persons with many types of impairments—including epilepsy, diabetes, multiple sclerosis, major depression, and bipolar disorder—had been unable to bring ADA claims because they were found not to meet the ADA’s definition of “disability.” Yet, Congress thought that individuals with these and other impairments should be covered.
As a result of the ADAAA and EEOC’s final regulations, it will be much easier for individuals seeking the law’s protection to demonstrate that they meet the definition of “disability.” As a result, many more ADA claims will focus on the merits of the case.
What are “major life activities”?
The final regulations provide a non-exhaustive list of examples of major life activities: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working. Most of these examples are not new.
However, the final regulations also state that major life activities include the operation of major bodily functions, including functions 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. The final regulations also state that major bodily functions include the operation of an individual organ within a body system ( e.g., the operation of the kidney, liver, or pancreas).
As a result of the ADAAA’s recognition of major bodily functions as major life activities, it will be easier to find that individuals with certain types of impairments have a disability.
Perfect timing! New ADA regs explained at Employers’ ADA Compliance Virtual Summit on March 31, 2011. Live, online, 10-3:30 Central. Get more details here. (Invite as many as can fit around the table.)
When does an impairment “substantially limit” a major life activity?
To have an “actual” disability (or to have a “record of” a disability) an individual must be (or have been) substantially limited in performing a major life activity as compared to most people in the general population. Consistent with the ADAAA, the final regulations adopt “rules of construction” to use when determining if an individual is substantially limited in performing a major life activity. These rules of construction include the following:
- An impairment need not prevent or severely or significantly limit a major life activity to be considered “substantially limiting.” Nonetheless, not every impairment will constitute a disability.
- The term “substantially limits” should be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADA.
- The determination of whether an impairment substantially limits a major life activity requires an individualized assessment.
- In keeping with Congress’ direction that the primary focus of the ADA is on whether discrimination occurred, the determination of disability should not require extensive analysis.
- Although determination of whether an impairment substantially limits a major life activity as compared to most people will not usually require scientific, medical, or statistical evidence, such evidence may be used if appropriate.
May the positive effects of mitigating measures be considered when determining whether someone has a disability?
No, except for ordinary eyeglasses or contact lenses. The ADAAA and the final regulations direct that the positive (or ameliorative) effects from an individual’s use of one or more mitigating measures be ignored in determining if an impairment substantially limits a major life activity.
Do the regulations give any examples of specific impairments that will be easily concluded to substantially limit a major life activity?
Yes. The regulations identify examples of specific impairments that should easily be concluded to be disabilities and examples of major life activities (including major bodily functions) that the impairments substantially limit. The impairments include: deafness, blindness, intellectual disability (formerly known as mental retardation), partially or completely missing limbs, mobility impairments requiring use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia.
NEW ADA REGS out today! Experts say lawsuits will be just that much easier to file. Learn what the new regs require, and how to avoid the lawsuits at the Employer’s ADA Compliance Virtual Summit March 31. Get the details here.
Clearly, complying with the ADA isn’t going to get any easier. New regs are always confusing and these are no exception. Fortunately, there’s an upcoming online summit that will clarify the requirements of the new rules and help you to modify your policies, procedures, and training to comply.
Employers’ ADA Compliance Virtual Summit
Join us from the comfort of your office or conference room, for this extended web seminar and learn the latest solutions to emerging ADA challenges. In just one day, we’ll cover:
- New ADA Amendments Act regulations you MUST incorporate into your policies and decision-making
- How to Make the Tough Coverage Calls — and Avoid ADA Lawsuits
- Satisfying Your Obligation to Reasonably Accommodate an Employee
- Mastering the interactive process
- How to manage unique ADA circumstances and correct ADA compliance mistakes
PLUS: You’ll have time to get answers to YOUR ADA compliance questions in a special Q&A session when you participate in this extended web seminar.
Sign up or get more information on the Employers’ ADA Compliance Virtual Summit
Your Virtual Summit Agenda:
- Session 1: How the ADA and Its Recent Amendments Present Fresh Challenges for Employers
- Session 2: Avoid ADA Lawsuits: Learn How to Make the Tough Coverage Calls
- Session 3: Satisfying Your Obligation to Reasonably Accommodate an Employee
- Session 4: How “Active” is the Interactive Process?
- Session 5: Case Study Challenge: How to Handle Unique ADA Cases
- Session 6: Overcoming ADA Compliance Missteps
- Session 7: Your Toughest ADA Compliance Questions Answered
Internet conferencing delivers all the professional learning benefits of a regular conference at a fraction of the cost. For one low price, train as many colleagues as you wish with no travel, lodging or per diem expenses. Just like an off-site conference, you can pick and choose sessions that apply to you and your staff.
Thursday, March 31, 2011
10 AM-3:30PM Central (adjust for your time zone)
Sign up or get more information on the Employers’ ADA Compliance Virtual Summit.