New regulations to add millions to pool of those protected by Americans with Disabilities Act

Flickr/Joe Shlabotnik

Come May, employers will be required to provide accommodations for a new range of issues and diseases that have recently been given the distinction of “disability” after an update to the Americans with Disabilities Act.

The Equal Employment Opportunity Commission last week published the guidelines as to how to define a disability under the latest version of the Americans with Disabilities Act of 1990, which was amended in 2008 as the ADA Amendments Act.

The document published in the Federal Register includes the final revised ADA act and interpretative guidelines, which, according to an EEOC release, are ”designed to simplify the determination of who has a ‘disability’ and make it easier for people to establish that they are protected by the Americans with Disabilities Act.” The regulations go into effect May 24.

In the most current version of the act, “disability” is defined as a “physical or mental impairment that substantially limits one or more life activities of such individual.” In other words, a disability was always considered to be constantly “debilitating.” The new regulations maintain the ADA’s definition of disability, but major changes come from how the terms “impairment” and “life activities” are interpreted. With the new language, “impairment need not prevent or severely or significantly restrict performance of a major life activity to be considered a disability. Additionally, whether an impairment is a disability should be construed broadly, to the maximum extent allowable under the law.”

Impairments that are in remission or are episodic, such as cancer or epilepsy, can now be interpreted as “substantially restricting the performance of a life activity” when the condition is active.

Under the regulations, “major life activities” include “major bodily functions,” such as functions of the immune system, normal cell growth, and brain, neurological, and endocrine functions. The rules document clarifies that not every impairment will be considered a disability and gives clear examples, such as HIV infection, diabetes, epilepsy and bipolar disorder.

Formerly, the burden of proof was on the worker to prove he or she suffered from a condition that required certain accommodations; now it will be up to individual employers to make certain they have not overlooked any condition or disability that could be covered under the law.

A census estimate (PDF) from 2005 found that of all Americans, 16.5 percent of people aged 21 to 64 had some level of disability; 45.6 percent of this group was employed.

In its preliminary estimation of the effects of the amended ADA, the EEOC, predicted that the new regulations would increase the pool of those considered to be workers with disabilities by 160,000 people; but further analysis and input from academics and experts raised that estimation to between 12 million and 38.4 million new disabled workers.

The EEOC further estimates that the broadened definitions will lead to between 400,000 and 1.2 million new accommodations employers will be required to provide, which is estimated to cost between $60 million and $183 million annually. The commission notes that many of these accommodations will be low-cost, such as allowing breaks or making small modifications to office equipment.

“Just as the ADAAA [ADA Amendments Act] was the result of a considerable bipartisan effort by Congress, the final rule represents a concerted effort of EEOC Commissioners representing both parties to arrive at regulations that hold true to that bipartisan Congressional intent,” said EEOC Commissioner Constance S. Barker in a press statement. “I was pleased to have been able to vote in favor of the final rule.”

Read the full analysis and implications of the regulations here.

Law firm Seyfarth Shaw LLP provides a list of implications for employers, essentially suggesting new tactics for fighting lawsuits. These include:

  • “Defendants are far less likely to prevail in court by arguing that an individual is not disabled and therefore is not covered under the ADA and/or does not require accommodation. “
  • Now more than ever, employers must focus on reasonable accommodation, and on whether an individual with a physical or mental condition is otherwise qualified to perform essential job functions, with or without reasonable accommodation.”
  • “Lawyers defending ADA cases in court must, in most cases, wean themselves off arguing that the plaintiff is not disabled … the employer must typically focus its arguments on accommodation – it made accommodation, the plaintiff failed to request accommodation, the plaintiff declined accommodation, the plaintiff failed to participate meaningfully in the accommodation process, etc.”
  • “The class action epidemic that continues in most parts of the country will now likely expand further to encompass mass actions under ADAAA. Some such actions will be brought by the EEOC under pattern and practice theory. Others will be filed by plaintiffs seeking class certification under Rule 23. … The EEOC’s repudiation of that approach could well mean a rise in class cases, e.g., by numerous individuals with a particular impairment, or numerous individuals having various impairments – all of them now protected.”

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