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

Beth Dean 03.25.11
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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.

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