Key Provisions

The ADA Amendments Act, which went into effect in January 2009, expanded the definition of “major life activity” and specified that the effects of mitigating measures (e.g., hearing aids, wheelchairs, and medication) may not be considered when determining whether an impairment substantially limits a major life activity.

Last fall, EEOC published proposed regulations on applying the provisions of the new law. At press time, EEOC had not yet finalized the regulations, but no major changes are expected, says Yancey. (She expects the regs to be finalized this month.)

Under the ADA Amendments Act and proposed regulations, the definition of disability is interpreted more broadly than in the past. “It’s very different than what we have been dealing with up to this point,” she says. Previously, a condition was considered disabling under the law if it had a “severe” impact on an individual’s ability to carry out a major life function, but that is no longer the case.

For example, certain “temporary” or “episodic” conditions, such as chronic fatigue, may now qualify for disability protection, according to Yancey. “The courts may not have considered that as qualifying as a protected disability [in the past].”

The proposed regulations also provide guidance on a provision of the law specifying that employers can no longer consider mitigating measures when determining whether an employee is disabled. Previously, if an employee’s condition could be corrected with medication, for example, the individual was not considered to be disabled. However, that same individual would be considered disabled under the new law and EEOC guidance, she says.

HR Implications

With a broader definition of what constitutes a disability, the ADA is “going to apply to a lot more people than it originally did,” and there is a greater possibility for error in determining whether an employee is protected, says Yancey, who is also CEO of emTRAiN. HR professionals “are going to have to proceed very carefully.”

She offers the following advice to HR professionals:

• Get informed on the provisions of the law and EEOC guidance
• Revisit company policies to make sure they are in compliance, and republish the policies.
• Contact an in-house attorney or outside counsel to make sure he or she has a “ready resource” to connect with if there are questions about whether an employee is protected under disability law.
• Err on the side of caution when employees request an accommodation for a disability.
• Train managers on disability law and the need to check with HR if an employee has a potential issue that is covered by the ADA Amendments Act or its implementing regulations.

“Any time an employee is indicating in any way that they can’t perform their job or can’t get their job done, that should be setting off bells in the manager’s head,” Yancey says. “Information and education are key to not making mistakes.”

This article is provided to members of the Northeast Human Resources Association
as a member benefit, compliments of Business and Legal Resources, Inc.