By Nadine Vogel
President, Springboard Consulting LLC
The Equal Employment Opportunity Commission (EEOC) has issued its final revised Americans with Disabilities Act (ADA) regulations in order to implement the ADA Amendments Act of 2008 (ADAAA). The regulations are designed to simplify determining who has a disability and shift the focus of employers from deciding whether the individual has been discriminated against to whether the individual needs an accommodation. These regulations will become effective in May 2011.
Some employers are concerned that these new regulations will mean that virtually everyone will be considered disabled. Though not nearly that dramatic, many more individuals will now be able to requestaccommodationsfromtheiremployersunder the ADA.
The ADAAA and the final regulations keep the ADA’s definition of the term “disability” as:
- A physical or mental impairment that substantially limits one or more major life activities;
- A record (or past history) of such an impairment;
- Being regarded as having a disability.
However, the ADAAA contains significant changes in how those terms are interpreted such as:
- Employers should focus on accommodations, as opposed to questioning whether someone is disabled.
- Mitigating measures including medicine, other treatments, and prosthetic devices must be set aside in analyzing whether an individual is disabled.
- “Major life activities” includes “major bodily functions,” such as functions of the immune system, normal cell growth, and brain, neurological and endocrine functions.
- Coverage is extended to individuals with episodic impairments or conditions in remission, if the impairment would substantially limit a major life activity in an active state.
Temporary impairments are protected. As under the original ADA, not all impairments constitute a disability but those that are include: HIV infection, diabetes, epilepsy, Autism, blindness, post-traumatic stress disorder and bipolar disorder.
Now more than ever, employers should focus on reasonable accommodation, and on whether an individual with a physical or mental condition is otherwise qualified to perform essential job functions. Employers should reassess their job descriptions, job qualification standards,and their reasonable accommodation process—something many employers don’t have. The same goes for all forms of tests and testing procedures including physical ability tests, which may adversely impact persons with disabilities, or at the very least require accommodation upon request. Now more than ever, documentation is key, as is training. If a supervisor fails to recognize an employee’s request for accommodation,the employer may well be liable—even absent evidence of intentional discrimination.
If you need 24-hour turnaround on your most pressing ADAAA and accommodations questions, then subscribe to Springboard’s ADA Hotline. Contact us at 973-813-7260 x102 or email us at [email protected] to inquire about the hotline, tool kits, training and more.
This article has been sponsored by:
Springboard Consulting LLC
Nadine Vogel is the CEO of Springboard Consulting LLC. Founded in 2005, Springboard is recognized as the expert in mainstreaming disability in the global workforce, workplace, and marketplace. Serving corporations and organizations throughout the U.S., Canada, Europe, and Asia, Springboard has become a trusted partner in relation to disability issues and initiatives across virtually every business category. For more information, please contact Nadine Vogel at Springboard Consulting. Nadine is also the author of Dive In: Springboard into the Profitability, Productivity, and Potential of the Special Needs Workforce.