On May 24, new rules kick in intended to broaden enforcement of the Americans with Disabilities Act, generally seen as putting a greater onus on employers.
The ADA Amendments Act of 2008 became effective in January 2009, making significant changes to the definition of “disability” under the Americans with Disabilities Act; but it has taken until now for the U.S. Equal Employment Opportunity Commission (EEOC) to publish the final regulations in the Federal Register, giving companies a first definitive look at any changes that must be made to accommodate workers and limit any exposure to ADA lawsuits.
The new regulations do not apply to companies with fewer than 15 employees ”“ unless they accommodate the public, such as a retail shop or restaurant. And any company that is a federal contractor or otherwise receives federal funds is under the purview of the Amendments Act of 2008.
No longer excluded
In the 2010 fiscal year ending last June, ADA complaints received by EEOC were up 17 percent from fiscal 2009, the fifth straight year complaints increased. At the same time, the percentage of cases that the commission successfully proved had reasonable cause dropped for the first time in four years.
That number could escalate sharply in coming years under the new law, according to attorneys with Jackson Lewis L.L.P., which specializes in workplace law.
“Employers need to come to grips with the enormous reach of this new (law),” said Frank Alvarez, an attorney in the White Plains, N.Y., office of Jackson Lewis who leads the firm”™s disability, leave and health management practice. “In responding to a request for a reasonable accommodation, enforcing conduct or performance standards, or defending a charge or lawsuit, employers ought to presume injured or ill employees will be covered under the ADA.”
Among the big changes, Congress and EEOC are making it easier for individuals to establish that they have qualifying disabilities under the statute ”“ including those who suffer from diseases such as cancer and diabetes. The new law overturns multiple Supreme Court decisions that had excluded those conditions under the definition of ADA, which as defining a disability as an impairment that substantially limits one”™s life activities had left the courts significant wiggle room.
Establishing coverage
Under the new law, an impairment does not need to prevent or severely or significantly restrict a major life activity to be considered “substantially limiting” ”“ a major change.
With one exception ”“ ordinary eyeglasses or contact lenses ”“ assistive drugs or devices do not mitigate an employer”™s responsibilities under ADA, and an impairment that is in remission is counted as a disability if it would substantially limit a major life activity when active.
Under the new law, the focus for establishing coverage is on how a person has been treated because of a physical or mental impairment, rather than on what an employer may have believed about the nature of the person”™s impairment.
“Proving that one is regarded as disabled will be easily accomplished in most cases,” said Michael Soltis, another Jackson Lewis attorney. “Cases now will turn on process ”“ whether employers took the right steps to assess individually an employee”™s or applicant”™s ability to perform essential job functions and whether reasonable accommodations could overcome any job-related limitations. In the last two years, ADA charges have increased by 30 percent ”“ and that may just be the beginning.”
