The ADA Soon Will Cover More Disabled

The Equal Employment Opportunity Commission recently released final regulations implementing the Americans with Disabilities Amendments Act, or the ADAA. Like the act itself, "the regulations are designed to simplify the determination of who has a disability and make it easier for people to establish that they are protected by the Americans with Disabilities Act," the agency said in a statement.

The new EEOC regulations are an attempt to address what Congress saw as an overly narrow definition of just who was considered disabled. "Among the purposes of the ADAA 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'," the commission said in its Q&A.

"There were some really bad cases," at least from the employees' or plaintiffs' perspective, says Myra Creighton, an Atlanta-based employment attorney with Fisher & Phillips LLP. Many cases brought by employees alleging some sort of discrimination based on a disability never moved forward, as the employer would be able to successfully argue that the individual wasn't actually disabled under the ADA's provisions, and thus no discrimination based on his or her supposed disability could have occurred. What's more, if an employee could prove that his or her condition met the definition of a disability, it probably also meant that the impairment was severe enough to prevent him or her from doing the job.

To address this, the regulations issued last month expand the pool of individuals who may be considered disabled. While they maintain the definition of the term "disability," as a physical or mental impairment that substantially limits one or more major life activities, a record of such impairment, or being regarded as having a disability, they change the interpretation, according to the statement. For instance, to the list of "major life activities," the regulations add eating, sleeping, walking, standing, and sitting, as well as the operation of a major bodily function, such as the digestive and respiratory functions, according to a legal alert by Ford & Harrison LLP.

What's more, the impairment doesn't have to prevent or significantly restrict an individual from performing the activity. It only needs to limit the ability of an individual to perform it, when compared to most people in the general population. And, the impairment can be episodic or in remission, if it would substantially limit a major life activity when active. This covers conditions like asthma, cancer and epilepsy, the EEOC's Q&A said.

The new regs are supported by the American Association of People with Disabilities. "The regulations will greatly simplify the determination of whether a person has a disability and allow courts and other decision-makers to turn quickly to determining whether unlawful discrimination has occurred in the workplace, the AAPD said in a statement.

The U.S. Chamber of Commerce, while not addressing the regulations themselves, did express support of the "bipartisan work" that went into them. "The ADA amendments reflect a carefully crafted compromise between the business community and the disability community that was passed by the House and Senate without dissent," the Chamber statement said.

CFOs and other executives will want to be aware of several implications of the new regulations, Creighton says. For starters, while the concept of reasonable accommodations doesn't change with the new law, the pool of employees who can expect accommodations just got bigger. In addition, they shouldn't assume that a particular condition, such as social anxiety disorder, is minor and thus doesn't warrant some sort of accommodation. "Don't make those assumptions," she says. And, CFOs who work with larger companies won't want to argue that an accommodation poses an undue financial hardship, Creighton says. "That's rarely going to be a winner. For a mom-and-pop company, maybe. But, if you're a large company, that analysis is generally not in going to be in your favor."

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