Who’s disabled under ADA guidelines? EEOC takes a broad view
Dear HR Executive:
The newly beefed-up ADA guidelines have already made it easier for more workers to file disability discrimination claims. Now it looks like the floodgates will open even wider.
The EEOC has issued a series of proposed regulations to implement the recently passed ADA Amendments Act (ADAAA). If implemented, they could dramatically expand the pool of potential claimants.
Here are the main pain points employers will need to consider if these draft regulations are eventually adopted:
More “automatic” disabilities. A very specific laundry list of mental and physical conditions would be presumed to amount to disabilities in almost every case under the new ADA guidelines. These would include autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, major depression, bipolar disorder, post traumatic stress disorder (PTSD) and schizophrenia.
Previously, the idea of “individual analysis” of a particular employee’s health would allow an employer to show that an employee with one of these conditions wasn’t necessarily disabled, if the condition wasn’t particularly serious. Now, though, the EEOC says these conditions should be found to be substantially limiting almost every time.
More conditions. Certain other conditions – including high blood pressure, anxiety disorder, learning disabilities and carpal tunnel syndrome – might amount to disabilities under the new ADA guidelines, depending on their severity.
A lower burden of proof for workers under the new ADA guidelines. Under the law, a disability must create a “substantial limitation on a major life activity.” But in the past, courts have given employees a second hurdle to clear, making them show their condition actually makes it difficult for them to perform “activities of central importance to daily life.” Under the new ADA guidelines, that second test goes away. That would further relax the ADAAA’s already broadened view of what qualifies as a disability.
An example cited by the EEOC: An employee has a long-term lifting restriction of 20 pounds. That, in and of itself, is “a substantial limitation on a major life activity” – i.e., work. So he wouldn’t also have to demonstrate substantial limitations in picking up heavy items at home or while shopping.
The draft ADA guidelines still have to go through the Office of Management and Budget and other federal agencies, of course. But it’s a good idea to take steps now to prepare:
- Educate managers to recognize disability accommodation requests, even when they’re not phrased as such, and even when they involve conditions that may not have been considered “disabilities” in the past.
- Remind managers to explicitly acknowledge accommodation requests – starting the “interactive process” of discussion required by law – and to bring the request to HR’s attention immediately.
- Encourage managers to provide an interim accommodation at the time one is requested, pending a higher-level decision on what if any long-term accommodation is possible. If a lawsuit is later filed, this kind of initial reaction can show that your firm acted in good faith.
Dave Clemens
Editor
HR Café Newsletter
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