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ADA amendment rules may lead to more claims

EEOC's regulations expand definition of 'disability'


WASHINGTON—The Equal Employment Opportunity Commission's final regulations for the Americans with Disabilities Act Amendments Act expand what qualifies as a disability and opens the door to increased claims against employers, employment attorneys say.

Though the ADA Amendments Act has been in place since fall 2008, the final rules the EEOC released last week vastly increase the number of workers potentially covered under the law and likely will result in more disability discrimination claims (see story, page 18).

“The main thing employers have to do is if they have let the ADA fall by the wayside because of the courts' restrictive view on disability cases, they had better get up to speed,” said Robin E. Shea, Winston-Salem, N.C.-based employment lawyer with Constangy Brooks & Smith L.L.P. “The ADAAA didn't change the reasonable accommodations obligation for employers, but what it does now is it applies to a much larger population than ever before.”

The regulations governing the law, which revised the 1990 Americans with Disabilities Act, go into effect May 24.

“These regulations are interpreting the term of "disability' very broadly, making it easier for an employee to satisfy the coverage requirements of the ADA and very difficult for an employer to show an impairment not to be a disability,” said Irving Geslewitz, Chicago-based labor employment attorney with Much Shelist Denenberg Ament & Rubenstein P.C.

The regulations, the EEOC said in a statement, are intended to make it easier for individuals to establish that they qualify under the “regarded as” part of the definition of disability.

Courts' interpretation of the definition of disability had been narrow, attorneys said, but now the disability determination under the “regarded as” prong of the ADAAA is afforded based on how the person was treated, rather than on what an employer believes about the nature of a person's impairment.

The original ADA overturned several Supreme Court decisions that narrowed the definition of disability, which resulted in denial of protection for individuals with ailments such as cancer, epilepsy and diabetes.

The final regulations of the revised law keep the definition of disability as a “physical or mental impairment that substantially limits one or more major life activities,” but increase the focus on accommodating disabled employees.

“It's now very important that employers work through the accommodation process with the employee,” said Thomas M. Wilde, Chicago-based attorney and chairman of the labor and employment practice at Vedder Price P.C. “They will have to work to make accommodations to help that person perform the key functions of their job.”

Mr. Wilde and other employment attorneys said the onus of accommodating an individual on the job is not strictly on employers and that the ADAAA allows for an interactive process between the employee and employer.

Further, they said employers should be vigilant in their documentation of the process and, if an employee or potential employee is disqualified from a job, employers will have to show that they cannot perform the essential functions of the job.

The EEOC, which issued notice of the proposed rulemaking and sought public comment in September 2009, said it received more than 600 comments. The agency said the regulations “clarify the requirements of the law for all stakeholders, which is one of the commission's most important responsibilities.”

Labor and employment attorneys advise a review of qualifications standards that might tend to screen out individuals with disabilities to make sure the standards are job related and consistent with what's necessary to complete the job.

“We've lived with the ADA since 1990,” said Barry Hartstein, Chicago-based employment law attorney with Littler Mendelson P.C. “I think employers today have a good track record and most of them are sensitive to the issue. Most good employers try to be compliant to issues like reasonable accommodation and understand it's an engaging, interactive process.

“Courts will look at this aspect far more closely, so it's important that employers take a couple of extra steps and do this process the right way and not exclude a person if they can do the primary functions of a job,” Mr. Hartstein said.

Like the original disability law, the EEOC said the ADA Amendments Act regulations make it clear that not every impairment constitutes a disability. Examples of impairments that should easily be concluded to be disabilities, include HIV infection, diabetes, epilepsy and bipolar disorder, the EEOC said.