HR Solutions: Amendments call for broader interpretation of 'disabled'

Changes to the Americans with Disabilities Act mean employers may have to consider more employees as disabled.

Rules outlined in the Americans with Disabilities Act Amendment Act, or ADAAA, took effect Jan. 1. To understand the changes, it is important to understand the basics of the ADA, which forbids discrimination against a qualified individual with a physical or mental impairment that substantially limits one or more major life activities.

The old regime

Under ADA, a person is qualified for protection "if he is disabled, has a record of being disabled or is regarded as disabled." According to the old rules, if a disability was rectified with corrective measures, such as medication or a hearing aid, the individual was no longer considered disabled unless those measures became ineffective.

Under ADA, an individual must be able to perform essential job functions with or without reasonable accommodation. Accommodation is not required if it imposes an undue hardship on the enterprise, defined as a significant difficulty or expense. The ADA does not override health and safety requirements established under other federal laws, and it does not require placing someone in a position if doing so would present a direct threat to the employee or others, unless that threat can be reduced by reasonable accommodation.

New definitions

The latest ADA amendments create significant changes to the original rules, particularly in terms of outlining which actions are major life activities. Two nonexhaustive lists detail those activities.

One includes activities that the Equal Employment Opportunity Commission already has recognized under the ADA, and new ones have been added. These are caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.

The second list includes major bodily functions, such as normal cell growth and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, immune system and reproductive functions.

Under the ADAAA, even if a person has corrective measures that enable him to do his job, he is still considered disabled, so more employees are covered by the law.

Employers must provide reasonable accommodation if it is needed. Under the ADAAA, employers will be looked at closely to see if they spent the money needed on such accommodation, even if the employer thinks doing so posed an undue hardship. "Undue hardship" is going to be interpreted in a much broader sense under the ADAAA, requiring employers to spend more money.

Interpreting impairment

An employee's impairment must now be considered without corrective measures, except for ordinary eyeglasses and contact lenses.

An episodic impairment or one in remission is a disability if the medical condition falls within the definition of disability when it occurs, even if the disease never becomes active again.

The ADAAA states the Supreme Court and EEOC interpretation of "substantially limits" is too limiting, with a higher level of severity than was Congress' intent.

Accordingly, a broader interpretation must be adapted by businesses.

Employees must still perform essential job functions, but under the ADAAA, it is "with or without effective and reasonable accommodation." The ADA called only for reasonable accommodations. The courts will decide what "effective" means.

Disabled individuals must be able to perform job duties. No employer has to hire or keep a disabled employee if the job can't be performed; however, the employee may be able to perform the job without any effective and reasonable accommodations, or the employee may require effective and reasonable accommodation.

If an employee is regarded as being disabled, the actual or perceived physical or mental impairment need not limit a major life activity. Excluded from the "regarded as" definition are those impairments that are minor, or when the actual or expected duration is six months or less. In such cases, employees are not entitled to reasonable accommodation under the ADAAA.

Navigating compliance

In litigation under the ADA, many cases were dismissed because the employee was unable to meet the stringent definition of disability. In all probability, this will no longer be the case.

There are two keys to employer compliance with the ADAAA. One is an interactive process with disabled workers. During these meetings, the Health Insurance Portability and Accountability Act officer discusses effective and reasonable accommodations that will enable the performance of essential job duties. The informal discussion should not be stilted, but must still be well documented and overseen by the human resources department or consultant. The second key is whether the company provided effective and reasonable accommodations.

To ensure compliance with the ADAAA, companies must develop tools, forms, letters and processes to handle accommodation requests and the interactive process.[[In-content Ad]]Lynne Haggerman, M.S., is president/owner of Lynne Haggerman & Associates LLC, a Springfield firm specializing in management training, retained search, outplacement and human resource consulting.