New Rules Expand ADA Disability Protection

May 2011

New rules issued by the Equal Employment Opportunity Commission (EEOC) will expand the number of employees who can claim protection of the Americans with Disabilities Act (ADA). The new rules, authorized by the ADA Amendments (ADAA) passed by Congress in 2008, are effective May 24.

The EEOC – in issuing the new rules that spell out the intentions of Congress in passing the ADAA – states, “As a result [of the ADA amendments] and EEOC’s regulations, it will be much easier for individuals seeking the law’s protection to demonstrate that they meet the definition of ‘disability.'”

Employment law attorney Condon McGlothlen, partner with the firm SeyfarthShaw, LLP, explains why he and other employment law attorneys believe the new ADA rules will greatly expand the number of individuals claiming ADA protection. McGlothlen asserts:

The new regulations provide a list of conditions that, according to the EEOC, will “virtually in all cases be covered disabilities.” They are the major, chronic health problems in the country. The EEOC at the same time says, it’s not a list of per se disabilities, but that it’s going to be very, very easy for anyone with these disabilities to prove they are disabled under the law.

In another part of the law they say, anyone who has had one of those impairments is to be considered as though the condition is active. With any of those conditions either in remission or successfully treated, that individual is covered.

I don’t know how many people are covered by those conditions and factors, but it certainly is more than Congress intended when they passed the law.

Then take the approach of people who are regarded as disabled, if anyone has any kind of physical or mental impairment, that maybe is going to get better any day, and that individual is subject to some kind of adverse action because of the impairment, those people are going to be covered. Of course, there has to be some proof of a connection, some causation, between the impairment and the adverse action. Still, it’s going to be very easy for the employee to claim such a connection because of the timing of the action. The employee can claim they [the employer] knew I had some kind of impairment, and a month later, they took some action against me.

If you take those two universes of coverage — those with actual disabilities and those with a previous impairment — I think you’re over 50 percent of the workforce who could claim that they are disabled. That’s not to say they’re ultimately going to win in court, but it illustrates the breadth of the new definition of disability.

Key Elements in New ADA Disability Rule

Employers that must comply:
The ADA applies to all private employers and state and local governments that employ 15 or more employees who worked for the employer for at least 20 calendar weeks (in the current or previous year). A worker is counted as an “employee” if he or she has worked for the employer for at least 20 calendar weeks (in the current or previous year). The EEOC cautions that figuring out whether or not your business or organization must comply with the ADA and other equal employment laws can be complicated. So the EEOC recommends that if you are not sure how many employees your business or organization has had in a 20-calendar-week period, then contact an EEOC field office for assistance in making the decision.

Employees that have ADA protection:
The ADA amendments grant employees a “‘broad scope of protection’ by expanding the definition of the term ‘disability,'” the EEOC explains. The EEOC explanation of its new ADA rules states: “As a result of the ADAAA [ADA Amendments Act] and EEOC’s regulations, it will be much easier for individuals seeking the law’s protection to demonstrate that they meet the definition of ‘disability.'”

Covered Disabilities:
The ADA and the new EEOC rules define “disability” as:

  • a physical or mental impairment that substantially limits one or more major life activities (an actual disability), or…
  • a record of a physical or mental impairment that substantially limited a major life activity (a record of a disability), or…
  • when an employer takes an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory and minor (regarded as a disability).

What is a “physical or mental impairment?” The new regulations define “physical or mental impairment” as “any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems…” Examples given are: “neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine.” The definition also includes “any mental or psychological disorder, such as intellectual disability (formerly termed mental retardation), organic brain syndrome, emotional or mental illness, and specific learning disabilities.”

What are “major life activities?”
The EEOC rules provide a “non-exhaustive” list of examples of major life activities: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, working.

Further, major life activities include the operation of major bodily functions that include: functions of the immune system, special sense organs and skin, normal cell growth, digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. Also, major bodily functions include: operation of an individual organ within a body system, such as the operation of the kidney, liver, or pancreas.

The EEOC states: “As a result of the ADAAA’s recognition of major bodily functions as major life activities, it will be easier to find that individuals with certain types of impairments have a disability.”

How bad must an impairment be?
To be a covered disability, how bad must the impairment be? The EEOC answers: “An individual must be substantially limited in performing a major life activity as compared to most people in the general population.” However, an “impairment no longer has to prevent or severely or significantly restrict a major life activity to be considered ‘substantially limiting.’ Congress directed that the term ‘substantially limits’ to be construed broadly in favor of expansive coverage.”

Even a short-term impairment may be a disability if it is substantially limiting, the EEOC states.

Further, “an impairment that is ‘episodic or in remission (i.e., the impairment’s limitations are not present all the time) meets the definition of disability if it would substantially limit a major life activity when active.” Examples are: hypertension, asthma, diabetes, major depressive disorder, bipolar disorder, and schizophrenia, and cancer in remission.

What to do:
Following are actions to take to assure compliance with the ADA and the new EEOC rules:

1. Focus on accommodation, not on the disability.Attorney McGlothlen said employers, going forward now, need to “focus on accommodation rather than on whether the person is disabled or not.” People in hiring positions now will have to spend more time thinking about “how do we accommodate this person’s disability” rather than focusing on how the disability prevents the person from performing the essential functions of the job.

2. Expand pre-hiring testing. McGlothlen explained: “I think testing someone’s ability to perform before starting the job is a good thing. The test must be a good proxy of the job. If it’s a good test, it’s important that maybe rather than one or two hours long, the test needs to be closer to one full work day, so it better replicates the whole job at the pace it is performed. Maybe increasing the length of the test and making sure the test is valid. You’ve got some increased risk with the expanded ADA amendments. It’s a question of making the test as compliant as it can be, a proxy of what’s going to be done on the job.”

3. Review your hiring policies and new employee selection procedures. Have an attorney familiar with employment law assist you in reviewing all your hiring policies and new employee selection procedures to assure that they do not put you and your organization at risk of violating the ADA and the new ADAA rules.

4. Train your hiring decision-makers. Train all staff involved in the hiring process, especially those who are hiring decision-makers, in how to lawfully recruit, hire, and promote employees. Not once, but at least annually.

[NOTE: Information and guidance in this story is intended to provide accurate and helpful information on the subjects covered. It is not intended to provide a legal service for readers’ individual needs. For legal guidance in your specific situations, always consult with an attorney who is familiar with employment law and labor issues.]