To Assume or Not Assume? How the New ADAAA Regulations Make it Easier to Qualify as “Disabled”
In 2008, President George W. Bush amended the American with Disabilities Act (ADA) when he signed the ADA Amendments Act of 2008 (ADAAA). The ADAAA went into effect on January 1, 2009; however, the Equal Employment Opportunity Commission (EEOC) just issued its final regulations on the ADAAA on March 25, 2011. Under the ADAAA, it is easier for individuals seeking protection to establish a “disability” within the meaning of the ADA. The ADAAA also rejects several U.S. Supreme Court holdings and portions of prior EEOC ADA regulations. The new regulations are contained in a 40-page publication but the regulations all boil down to one point: Employers should assume an individual has a disability because the ADAAA makes it unlawful to discriminate, not just against individuals with an actual disability, but against anyone with a medical condition—whether actual, past, or perceived. When interpreting the definition and application of “disabled,” the ADAAA also rejects most ADA case law which took a restrictive view on who qualified as a person with disabilities.
Below are 5 tips on how to comply with the new ADAAA regulations:
1. Assume a person has an ADAAA “disability”. To comply with the new regulations, employers should err on the side of caution and assume a person has a disability.
2. Avoid “cat’s paw” liability. “Cat’s paw” liability is a legal term for the U.S. Supreme Court’s treatment of holding employers liable for the decisions influenced by lower management or supervisors who had unlawful motives. To avoid liability, inform your supervisors and managers that the ADA will cover more people than before. If in doubt, always encourage lower management to engage the human resources department or legal counsel.
3. Don’t challenge the employee’s disability. The new regulations provide for an exception to the “regarded as” coverage for “transitory and minor” impairments. A “transitory and minor” impairment is one that lasts or is expected to last for six months or less. However, to avoid allegations of discrimination and demonstrate good faith, the ADAAA wants you to engage the employee in an interactive process to provide reasonable accommodations. Therefore, employers will be judged not on their subjective belief of whether the medical condition was actual or perceived, but on whether the employer engaged in an objective interactive process to provide reasonable accommodations to the employee.
4. Review handbooks, practices, and train all managers regarding the ADA as amended, and its revised regulations in the ADAAA. The EEOC envisions accommodations to include changes in schedule (arrival/departure times or break times), swapping of marginal functions, the ability to telework, policy modifications (e.g., altering for an individual with a disability when or how a task is performed, or making other types of exceptions to generally applicable workplace procedures). In reviewing your policies, keep an eye out for policy provisions that call for “automatic” termination without an individualized assessment or consideration of reasonable accommodation options. In this new era of ADAAA compliance, making reasonable accommodation the cornerstone of an employer’s disability policies and practices will be the employer’s best defense strategy.
5. When in doubt, contact legal counsel. Brush up on your legal obligations concerning reasonable accommodations. Employers will need to consider providing reasonable accommodations in many more cases than in the past. Guidance from an attorney will help you comply with the ADAAA.
Jacob M. Monty is the founding and managing partner of Monty & Ramirez, LLP. He is board certified in labor and employment law by the Texas Board of Legal Specialization. He is a member of the American Law Institute and named to Texas Super Lawyers in 2008, 2009, 2010 and 2011.