OMW Employment Law Blog

The EEOC’s proposed rules implementing the 2008 ADA Amendments Act (ADAAA) have been published, and are online at http://edocket.access.gpo.gov/2009/pdf/E9-22840.pdf.  The following are some of the highlights:

• Complying with a state or local law that is inconsistent with the ADA is not a defense.  For example, if a local ordinance prohibited teachers with tuberculosis from teaching, a school would not be able to rely on the ordinance in denying a job to a teacher with dormant tuberculosis.
• One way to meet the definition of “disability” is to have a physical or mental impairment which substantially limits one or more major life activities.  This definition has been broadened (or clarified, depending on your perspective) to include conditions that limit major bodily functions such as skin, genitourinary, cardiovascular, hemic, lymphatic, and musculoskeletal functions. 
• The standard for disability is easier to meet than it used to be.  For example, an impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity.
• Temporary, non-chronic impairments of short duration with little or no residual effects like a cold or flu still are not disabilities under the ADA (though they may qualify as such under Washington State law), but impairments that last or are expected to last less than six months can still be “substantially limiting.”
• An impairment can substantially limit a major life where there is a disparity between an individual’s aptitude and actual vs. expected achievement.  The individual does not need to prove impairment compared to “the average person” or “most people.”
• Impairments that result from age by itself, physical or personality characteristics, and environmental, cultural and economic disadvantages are not the kind of impairments that would qualify as a disability. 
• An individual can be disabled by a physical or mental impairment which substantially limits his or her ability to work.  Being limited in working is now easier to establish, and includes not being able to do certain types of work or certain job-related activities of the position the individual was performing or applying for, such as being impaired in standing, sitting, bending, or lifting as compared to most people having similar training, skills and abilities.
• An employee who can no longer do his/her own job may still be qualified for a vacant position as an accommodation.
•  Another way to meet the definition of “disability” is to have a record of a physical or mental impairment which substantially limits one or more major life activities.  However, having a record of being disabled for the purposes of some other law does not mean a person has a record of disability for ADA purposes.
• The third way to meet definition of “disability” is to be regarded as having a physical or mental impairment which substantially limits one or more major life activities.  Under the proposed regulation, this is met when a covered entity (e.g. an employer) takes some action prohibited by the ADA, such as refusal to hire, demotion, or termination because of an actual or perceived impairment. 
• Employers do not need to reasonably accommodate someone who meets the definition of disability solely because they are regarded as disabled.
• Job criteria that intentionally or unintentionally screen out or tend to screen out, individuals with disabilities are not acceptable unless the employer demonstrates that those criteria, as used by the employer, are related to the position and are consistent with business necessity. 
• The EEOC generally will not second-guess an employer’s business judgment regarding production standards.
• The EEOC will challenge standard that require a certain level of uncorrected visual acuity, so employers will need to establish that such standards are job-related and consistent with business necessity.

The regulations are not yet final, and are subject to change.  However, they provide some guidance for what employers can expect.  For information on how to adapt workplace policies to the proposed regulations, contact Karen Sutherland.

This entry was posted on September 24, 2009 at 6:51 pm and is filed under Accommodation. You can subscribe via RSS 2.0 feed to this post's comments.

Tags: ADA, ADA amendments, ADAAA