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Can More of your Employees Claim to be Disabled?

Effective May 24, 2011, final regulations published by the U.S. Equal Employment Opportunity Commission (EEOC) for implementing the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) went into effect.  The intent of these regulations is to simplify the determination of who has a “disability” and who is therefore protected by the American with Disabilities Act (ADA), but it also broadens the scope of what is considered a disability.

The original Americans with Disabilities Act (ADA) defined disability vaguely, which led to denial of protection for individuals with conditions like diabetes, cancer, and major depression.  The ADAAA of 2008 broadened the legal definition of disability, and the final regulations now make it easier for people to establish that they are protected by the ADA.

What regulations were revised in the ADAAA of 2008?

Under the original ADA, a disability was defined as any condition that substantially limits major life activities.  The revised regulations released this year include the following expanded definitions:

  • A disability is a condition that “substantially limits” the ability of an individual to perform a major life activity as compared to most people in the general population.
  • The term “major life activity” includes, but is not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
  • Many impairments, such as deafness, blindness, epilepsy, diabetes, cancer, autism and bipolar disorder, will practically always be considered covered disabilities.

How does the ADAAA of 2008 impact me as an employer?

The 2011 regulations shift the law’s focus from whether someone has a disability to whether an employer is making reasonable accommodations to enable an individual to perform the “essential functions” of a job. It is the employer’s responsibility to ensure that all aspects of employment comply with the final regulations. Moreover, these regulations cover both employees and job candidates.

How do I protect myself and my business?

To minimize discrimination claims, here are some things you can do today to protect yourself and your business:

  1. Review job applications, job postings, and job descriptions. Make certain they avoid language that might be considered discriminatory against otherwise qualified candidates. Define all aspects of a job clearly.
  2. Train your job interviewers. Interviewers may not ask job applicants questions relating to health or disability.
  3. Don’t make quick judgments about disciplining or terminating an employee. Evaluations of potential disabilities should be completed before making any decisions regarding discipline or termination.

The revised regulations under the ADAAA of 2008 is just one example of the administrative headache that comes with every new or revised employment law. It takes just one incident to damage your business and its reputation.

Stay informed and more importantly, compliant, by partnering with simplicityHR. Speak to one of our experienced HR consultants by calling (808) 791-4900.

Additional resources from the EEOC

 

This article is for informational purposes only and does not constitute legal advice. Readers should first consult their attorney, accountant or adviser before acting upon any information in this article.

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