On March 25, 2011, the Equal Employment Opportunity Commission (“EEOC”) released sweeping New Regulations to the Americans with Disabilities Act (“ADA”) Amendments Act of 2008, offering new guidelines on how to define “disability” under the ADA. The EEOC has published a “Questions and Answers” guidance sheet and a Fact Sheet to better aid employers in understanding the final regulations.
The regulations place more of an emphasis on whether discrimination against an individual occurred and whether or not a reasonable accommodation took place. A few particular and significant points of interest to employers with regard to the new regulations are the following:
(1) The regulations liberal interpretation of “disability” and expanded definition of “major life activities” through two non-exhaustive lists.
(2) The regulations also decrease the extent of analysis in determining whether an individual is “substantially limited [in] a major life activity,” thus allowing more workers to meet the standard necessary to establish a disability.
(3) Additionally, while the regulations acknowledge that the determination of disability requires an “individualized assessment,” it goes on to list certain conditions, such as autism, cancer, and diabetes, which will “virtually always” meet the definition of disability.
(4) Further, the regulations reject any minimum duration for an injury to qualify as a “disability,” thus opening the door to allowing any impairment, such as a broken bone which is expected to fully heal, to qualify as a “disability.”
(5) Finally, the regulations appear to shift the burden of proof in disability claims from the employee to the employer. Thus, employers will now have to show why a worker doesn’t require special accommodations, and not the other way around.
While the interpretation battle will make its way to the Courts in short order, employers should take the time now (the new regulations go into effect on May 24, 2011) to consult with their legal counsel and reassess their approach and policies dealing with disability discrimination and compliance with the ADA.
For additional information, please contact the DSV Labor & Employment Group of Drewry Simmons Vornehm, LLP via telephone (317) 580-4848, or contact Robert J. Orelup (mailto:rorelup@DSVlaw.com) or Andrew C. Briscoe (mailto:abriscoe@DSVlaw.com) directly via email.
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