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Thursday, September 24, 2009

Sweeping ADA Regulations Issued












Sweeping ADA Regulations Issued

Alabama@Work

By Tommy Eden, Attorney

Reprint O&A News 9-27-09

The Equal Employment Opportunity Commission (EEOC) on Wednesday published a Notice of Proposed Rulemaking in order to implement the ADA Amendments Act of 2008 (ADAAA). The 7 major changes include:

What now constitutes a “Disability”?

Under the current ADA a disability is (i) an impairment that substantially limits one or more major life activities, (ii) a record of such an impairment, or (iii) being regarded as having such an impairment. The proposed regulations will now: 1) Broadly interprets the definition of “disability”; 2) The impairment need not “significantly” or “severely” restrict a major life activity in order to meet the standard, but merely “substantially limits”; and 3) Expands the definition of “major life activities” by providing two categories of included major activities and functions:
ü What are Major Life Activities? caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working;
ü What are included Major Bodily Functions? the immune system, special sense organs, and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions - with examples such as cancer, epilepsy, HIV and AIDS;
4) Mitigating measures eliminated, other than ordinary eyeglasses or contact lenses, in determining whether an individual has a “disability”;
5) Classifies as a Disability an impairment that is episodic or in remission if it would substantially limit a major life activity when active (such as epilepsy or asthma controlled by medication);
6) “Regarded as Disabled” will have the most significant change as it no longer requires that the employer perceived the individual to be substantially limited in a major life activity. Now an applicant or employee who is subjected to an action prohibited by the ADA (not hired, denied promotion, fired or 10 other actions) because of an actual or perceived impairment, or symptoms of an impairment, will meet the “regarded as” definition of disability; and
7) Limits an employer’s ability to use selection criteria in employment decisions by prohibiting the use of qualification standards, employment tests, or other selection criteria that screen out or tend to screen out an individual with a disability unless shown to be job-related for the position in question and consistent with business necessity.
After the 60-day public comment period the EEOC will issue final regulations and provide an effective date. To view the entire 20 page Federal Register filing see: http://edocket.access.gpo.gov/2009/pdf/E9-22840.pdf
Common Sense Counsel: All Alabama employers should brace themselves. The “Regarded as Disabled” is a far reaching change that will affect every employer with 15 or more employees. Supervisory ADA Training, New Interview Procedures, New Interactive Accommodation Steps, Handbook Updates, and Job Description Essential Functions Upgrades are strongly encouraged before the final regulations are issued.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com