The ADAAA Has Changed the Face of Disability Discrimination. Check Out the 3 New Criteria.

Beth Dean 03.25.11
People Woman Coffee Meeting Sm

Employers now have definitive guidance on handling ADA claims. As of March 25, 2011, the final regulations to the Americans with Disabilities Act Amendment Act (ADAAA) have been published in the Equal Employment Opportunity Commissions (EEOC) Federal Register. By expanding the definition of disability, these regulations aim to put the focus on the actual merits of a case rather than on the nature of the disability.

DEFINITION

Disability is defined using three criteria. Employees may fit into any one of the three:

1. Actual Disability – A physical or mental impairment that limits one or more major life activities
2. Record Of – A record of a physical or mental impairment that limits one or more major life activities
3. Regarded As – An actual or perceived disability that is not temporary or minor

Physical impairments include conditions affecting one or more body systems, including neurological, cardiovascular, respiratory, lymphatic, anatomical, reproductive, and digestive. EEOC regulations have added immune and circulatory body systems to the list of impairments.

Mental impairments include any emotional, mental, psychological, or intellectual disability or illness.

Major life activities include but are not limited to caring for oneself, seeing, hearing, performing manual tasks, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, working, and major bodily functions such as the immune system and the operation of an individual organ within the body.

While claims of discrimination such as failure to hire or promote may be brought under any of the three prongs listed above, an employee is not entitled to reasonable accommodation(s) with only a perceived disability.

ADAAA PROVISIONS INCLUDE:

  • Active and Inactive Disabilities – Impairments that are episodic, in remittance, or ameliorated using mitigating measures are ADAAA-qualifying disabilities, including epilepsy, major depressive disorder, hypertension, asthma, bipolar disorder, and diabetes. 
  • Mitigating Measures – Mitigating measures are used to ease or eliminate the symptoms of impairment, such as hearing aids. Excluded: poor eyesight which is corrected with glasses or contacts. Employers cannot force or require employees to take mitigating measures to correct any real or perceived disabilities. However, an employee may be unable to perform a job’s essential duties by failing to use a mitigating measure, causing possible allowable removal from the position. 
  • Not Covered – Ailments not covered by the ADAAA include current illegal drug use (although activities related to rehabilitation programs are covered), gender identity disorder, and criminal disorders such as pyromania and kleptomania. 
  • Easily Substantiated – The EEOC has released a list of common ailments which should easily be considered disabilities for ADAAA purposes, including deafness, blindness, missing limbs, autism, cancer, diabetes, cerebral palsy, epilepsy, HIV infection, major depressive disorder, post-traumatic stress disorder, and schizophrenia.
  • Non-Disabled Employees – The ADAAA does not offer protection for employees who believe they were discriminated against for not having disabilities.

WHAT THIS MEANS TO YOUR COMPANY:

Nextep’s team of certified HR Professionals are already educated on these provisions and ready to help your company maintain compliance. 

  • Best Business Practices – Continue to use your best business practices, which include treating all employees fairly regardless of any protected status. Hire, train, promote, pay, and terminate nondiscriminatorily, maintaining written records supporting your decisions. Again, these regulations are primarily focused not on the disability, but on preventing discrimination.
  • Employee Handbook – Nextep’s handbook was reviewed by attorneys and updated to be compliant with ADAAA regulations. Companies with handbooks dated prior to January 1, 2009 should update immediately.
  • Job Descriptions – A written description of a jobs essential functions helps determine whether a person can fulfill it with or without a reasonable accommodation. Nextep can assist in completing these. 
  • Reasonable Accommodations – Employees are still responsible for being qualified for the job in question and requesting reasonable accommodations. Supervising and senior personnel should not seek medical treatment, diagnose, or assume that an employee has a disability; that responsibility lies only with the affected employee.

Above all, please contact Nextep’s HR professionals at hr@nextep.com or 888-811-5150 with questions and for case-by-case assistance on all claims and requests.

For the full text of the Federal Regulations, please visit 29 CFR Part 1630. You can also find advisement from the EEOC, including Questions and Answers on the Final Rule Implementing the ADA Amendments Act.

Also on Nextep

Spoiler Alert: Yes We frequently see a question posed to HR pros: “Do I have to pay my employee if…?” We’ll go ahead and give you a major hint at the outset. In many of the scenarios we see, the answer is yes, you do have to pay your employee. Here are a few scenarios. […]
Read more
The Answer Depends on Your State…For Now As we reported in January, non-compete agreements preventing employees from working for competitors are becoming increasingly unenforceable. The FTC is currently working on banning them at a federal level, but unless and until that decision comes, non-competes are enforced at a state (and sometimes even local) level.  As […]
Read more
When hiring workers, knowing whether they’re employees or independent contractors is essential. The difference between the two can significantly impact your business, including your tax liability, your liability for workers’ compensation claims, the worker’s rights and benefits, and your ability to control how your workers do their jobs. Read all about it here, and check […]
Read more
Employers Must Now Prove “Substantial Increased Cost” to Deny Religious Accommodation Recently, the Supreme Court ruled that employers must now demonstrate a substantially increased cost to deny an employee’s request for a religious accommodation.  This ruling, which comes in the case of Groff v. DeJoy, clarifies the standard for “undue hardship” under Title VII of […]
Read more
Here’s How the Recent Ruling Affects Your Company You may have read that in late June, the Supreme Court struck down affirmative action in college admissions. Here’s the implication this ruling could mean for you as a small or medium-sized business owner. To be clear, the Supreme Court’s decision on affirmative action does not explicitly […]
Read more
The new Form I-9 is here, and it has some changes that you need to know about. The latest version of Form I-9, Employment Eligibility Verification, took effect on August 1, 2023. Employers should take note this new form has a few changes. Here’s a quick rundown. Employers must use the new form for all […]
Read more
NLRA Protections: They’re Not Just for Unions In the intricate fabric of company dynamics, employee protections exist, even in non-unionized companies, as granted by the National Labor Relations Act (NLRA). These protections give employees the freedom to engage in open discussions on various workplace matters, even those conversations that may make employers a tad uneasy. […]
Read more
Your Cheat Sheet to Poster Penalties We all know the importance of labor posters, but did you know how much noncompliance could cost you? Let’s take a closer look at what this means for employers. Each poster has its own associated fine if not displayed. The DOL and EEOC have set fine levels that include: […]
Read more
Navigating I-9 Compliance Though the COVID-19 pandemic has officially ended, we’re still seeing changes to compliance in the aftermath. Today, we bring you important information about form I-9.  The U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) recently made an announcement about form I-9. The flexibility to check identity and […]
Read more
Have you ever felt stuck in a job that doesn’t fully utilize your skills or expertise? Or have you ever been a part of a team that just doesn’t seem to have the right skills to do the job effectively? This is a common problem in the workplace, known as the skills gap. But don’t […]
Read more
Are you ready for the new regulations impacting your state? In July and August, several states will implement noteworthy updates to their employment laws, bringing changes and protections for workers. These updates address various aspects of the employment relationship, including wages, benefits, discrimination, and harassment. One area of focus has been minimum wage adjustments. Many […]
Read more
Start planning for your future superstar. What would happen to your company if you lose a key leader or employee tomorrow? It’s a tough question, but necessary. You want to ensure your company can continue, even without the lifeblood that keeps it running smoothly today. That’s where succession planning comes in. Succession planning is identifying […]
Read more

Download Our App