Prepare Now for New ADA Regs

The regulations published by the Equal Employment Opportunity Commission in late March that implement the ADA Amendments Act of 2008 will significantly expand the number of Americans covered by ADA. Enacted by Congress to negate several U.S. Supreme Court rulings, the regulations set a lower threshold for a physical or mental impairment that "substantially limits" one or more major life activities, expand the definition of major life activities by adding a non-exhaustive list of "major bodily functions," and do not specify any specific minimum duration for the effects of an impairment to be deemed substantially limiting.

The new regulations apply to all private-sector employers with 15 or more employees and take effect May 24. Employers have many questions about what did and did not change, said Alexandra Bak-Boychuk, a fifth-year associate who works in Ballard Spahr's Labor and Employment Group, in the law firm's Philadelphia office.

"The focus is no longer on establishing whether a person is disabled. The focus is on the employer's obligation and whether or not discrimination occurred," she said.

"Employers had a sense already of what was coming when the ADA Amendments Act was passed," she said, "and so I think it was just a matter of timing as to when the final regulations would be issued. And then, you also make the point about, who do I have to start accommodating and when." Employers already would have been accommodating individuals who are blind or deaf, for example. The trickier judgment calls employers should have known were coming from the act's enactment are depressive disabilities that EEOC listed, which it said will "virtually always" meet the definition of disability. These are disabilities managers can't see, including major depression, post-traumatic stress disorder, and obsessive-compulsive disorder. The major bodily functions list was added to make it easier to find that individuals with certain impairments have a disability.

EEOC has predicted both accommodation requests and employers' costs will increase. And the agency may have underestimated the number of people who will be covered, Bak-Boychuk said. "You look at conditions like hypertension. We took a look at the American Heart Association figures, and there are about 75 million Americans above the age of 20 -- so these are people who are likely in the workforce -- who have high blood pressure. And there is a high percentage of those who are seeking treatment. Under the new regulations, if you have a worker who is controlling the hypertension with medication, you will never know it as an employer; that's a mitigating measure that now is not considered in the question of whether or not that person is considered disabled. That the person with hypertension is able to work in the workplace just fine doesn't mean the person isn't disabled."

"The question of duration will definitely cause some employers to scratch their heads," she added. "Employers did ask the commission to impose some sort of duration on the 'substantially limits' question, but the commission did not. As a result, even an impairment with a duration of six months or less can substantially limit a major life activity or a major bodily function, if it's severe enough. I have a friend who did something to his ankle. I saw him six months later and he was wearing something on his foot because he had hurt it again and was going to physical therapy. Well that's six months, and then there's physical therapy. Someone like that might be covered. Employers need to be aware of that."

Bak-Boychuk said employers covered by the new regulations should prepare now by taking these actions:

• Review your job descriptions. "We're really talking about the essential functions; that's still the barometer and hasn't changed."
• Revise your policies.
• Train your managers. "They're your front line, and they will now be dealing with a workforce where possibly one of every eight employees is going to qualify under the act. Managers need to be able to recognize this in situations where they haven't before, particularly with the major bodily functions. . . . Because you're going to have more employees that are going to be covered, managers are going to receive more requests for accommodations, and they also need to be trained on just how to process all of this."

At least initially, more ADA lawsuits will be filed, she predicted, adding that employers still have defenses. For example, while mitigating measures can't be taken into account, an employer can rely on a worker's refusal to take a medication in raising a "direct threat" defense. And when a worker relies on the "regarded as" prong of the ADAAA's definition of "disability" -- claiming to have been subjected to a prohibited action because of an actual or perceived impairment -- the prong says that impairment cannot be both "transitory and minor."

EEOC's website offers a wealth of information about the new regulations, particularly in a document titled "Questions and Answers on the Final Rule Implementing the ADA Amendments Act of 2008."

Posted by Jerry Laws on Apr 18, 2011