New ADA Regs from EEOC;
Interpreting ADA Amendments
Process, not Disability, will be the Focus
Effective May 24, 2011
The Equal Employment Opportunity Commission has published its final regulations implementing the ADAAA (ADA Amendments Act). Although the ADAAA has been on the books for over a year the Commission did not get the final rules in place until March.
Not surprisingly, the regulations facilitate the increased access to protection. “Substantially limits” is given an expansive construction and whether an impairment substantially limits a major life activity is, to the EEOC, not subject to a lot of analysis. An impairment need not prevent or significantly restrict the performance of a major life activity to be considered “substantially limiting.” And putting aside eyeglasses or contact lenses, whether an impairment substantially limits a major life activity is never a matter of mitigating measures such as hearing aids or insulin self-treatment for diabetics.
The EEOC identifies certain impairments that in virtually all cases are protected disabilities, so that “predictable assessments” by employers should lead to coverage of the employee (or applicant) under the ADA: deafness, blindness, intellectual disabilities, partially or completely missing limbs or mobility impairments requiring the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.
“Regarded as” is stronger in the new regulations, which will make it easier for a person to get ADA coverage. Employers who fire employees for legal reasons, but who have perceived impairments, will have more defending to do.
The focus for the EEOC is less of defining what a “disability” and “substantial impairment” are, and more of what constitute legal responses by employers to hire and employment situations involving the disabled. Hence the theme of “process,” whether it be in the recruiting phase, the accommodation issues that arise during employment, or in the now radioactive phase of deciding whether to permit a potentially ADA-covered person to stay on leave after the FMLA time has run out.
In the context of the last of these the EEOC has also spoken on “no fault” attendance policies that impose dismissal on an employee who is out for an extended period of time, regardless of the reason. The EEOC expects employers to navigate the waters at the end of the FMLA leave period very carefully, and once the potentially disabled employee has used up the post-FMLA extended leave, an employer must individualize its handling of the problem employee.