• Perspectives on the Final Regulations to the ADA Amendments Act
  • November 7, 2011 | Author: Evan H. Pontz
  • Law Firm: Troutman Sanders LLP - Atlanta Office
  • The wait is over. The new regulations interpreting the Americans with Disabilities Act (ADA) Amendments Act are now effective, and with them comes a new world of disability claims for employers. The ADA Amendments Act expanded what it means to be disabled, and favors coverage of individuals to the “maximum extent” permitted by the ADA. On May 25, 2011, the Equal Employment Opportunity Commission (EEOC) issued final regulations interpreting the ADA Amendments Act. As explained below, these new rules undoubtedly pose new challenges and many questions for employers.

    Key Changes in the Final Regulations to the ADA Amendments Act

    The new regulations offer the EEOC’s guidance on what the ADA Amendments Act means for employees and employers. In a nutshell, they clarify that employers should focus less on whether an employee is “disabled,” and more on what employers can do to reasonably accommodate an employee’s requests for assistance in performing the job. For instance:

    • Employees no longer need to show that they are “severely” restricted to establish that they are disabled. Before the ADA's amendment, courts found that employees must demonstrate that they were “severely restricted” in performing a major life activity to be disabled under the ADA. Congress and the EEOC explicitly rejected the old standard. Now, an employee is considered disabled if he or she has difficulty performing major life activities that the rest of us can do with little or no problem.

    • More individuals will be covered because the new law has expanded the list of major life activities. The ADA Amendments Act provides a non-exhaustive list of examples of major life activities. The regulations add to this list activities such as “sitting,” “reaching,” and “interacting with others”—activities that were not considered major life activities before the ADA Amendments Act.

    • Employees are now considered disabled even if they use medication or other devices that virtually eliminate all signs of their impairment. Before the ADA Amendments Act, individuals were not considered disabled if the effects of their impairments were controlled by medication or other assistive devices. For instance, someone whose epileptic seizures were well-controlled by medicine was not disabled. Those days are over. Now, even if a condition is controlled by certain “mitigating measures,” like medication, prosthetic devices, etc., the employee with that condition is still deemed “disabled” for purposes of the ADA Amendments Act.

    • Impairments that are episodic or in remission must be considered. The ADA Amendments Act provides that an impairment that is episodic or in remission still meets the definition of disability if it would substantially limit a major life activity when active. The regulations state that conditions such as epilepsy, post-traumatic stress disorder, hypertension, diabetes, major depression, bipolar disorder, and asthma may qualify for protection as impairments that are episodic or in remission.

    We Asked...And Here’s What HR Pros Had to Say About the Final Regulations

    To get a sense for how the ADA Amendments Act and the regulations are impacting employers, we spoke with human resources professionals who are responsible for disability and wellness management. These professionals view the ADA Amendments Act as an important and substantive change in the law. There is a clear sense that an employer’s efforts to engage in the interactive process will be more important under the ADA Amendments Act and the regulations. Specifically, the HR professionals we interviewed believe that the new rules will result in more requests for accommodation and, consequently, more headaches for employers who believe they must choose between the expense and burden of granting requests and potential legal liability for denying requests.

    The HR experts we spoke with also expressed concern that the ADA Amendments Act and regulations could force changes to their workplaces. For instance, in many industrial workplaces, disability issues are closely related to safety concerns. Employers may have a legitimate need to prevent employees from working while under the influence of certain prescription drugs that affect employee alertness or behaviors. But since the ADA Amendments Act is expected to increase the percentage of employees who qualify as “disabled,” the HR professionals we interviewed wondered if employers will struggle to enforce workplace safety rules and other policies that may conflict with providing accommodations to a significant number of their employees.

    Of course all is not lost under the ADA Amendments Act. For all of the new changes, employers still have the same rights and remedies as before. Most importantly, they do not need to maintain someone’s employment if that person cannot perform the essential functions of the job. Thus, it is now especially important that employers have clear, correct, updated and fully-defensible job descriptions and that they ensure that their employees understand the expectations of the job. The HR professionals we interviewed plan to educate themselves further on the ADA Amendments Act and the regulations. Their goal, as it was explained to us, is to avoid becoming a “test case” for the EEOC or courts that are still learning and interpreting these new rules.

    In a Recent Case Decided Under the ADA Amendments Act, the Court Held...

    Among other things, the HR professionals we interviewed were troubled by changes in the ADA Amendments Act and the regulations stating that an impairment that is episodic or in remission meets the definition of disability if it would substantially limit a major life activity when active. “How will this new rule affect requests for accommodation?” they asked. Fortunately, a recent case offers an illustration of how this new rule may be applied in real life.

    In Hoffman v. Carefirst, Steven Hoffman worked as a service technician for a medical supply company. Hoffman suffered from advanced renal cancer, which ultimately required surgery to remove one of his kidneys. After his company signed a new contract that would require all service technicians to work extensive overtime, Hoffman asked for an accommodation and produced a doctor’s note stating that he should be limited to working forty hours per week because of his condition. Previously, Hoffman had no work restrictions. His company initially refused this accommodation and terminated Hoffman. Perhaps realizing its mistake, the company offered to rescind the termination and limit Hoffman’s work week, but only if Hoffman agreed to a new work location (that would require an additional two-hour commute). Hoffman refused this offer and sued, claiming that the company’s actions violated the ADA Amendments Act.

    In deciding the case, the Illinois federal court noted that the ADA Amendments Act has shifted the focus of the ADA to the interactive process and away from questions related to whether an employee has a disability. While the company argued that Hoffman’s cancer was in remission and therefore did not constitute a disability, the court disagreed, citing what it termed the “clear language” of the ADA Amendments Act to the contrary. The court further held that the company’s efforts to accommodate Hoffman were inadequate because no evidence established why Hoffman’s proposed accommodation (of not working overtime) would have created an undue hardship. The lesson from Hoffman is clear: when faced with evidence that an accommodation is medically necessary, employers need to grant the accommodation or point to evidence of a hardship that the requested accommodation is too problematic to allow. In many cases, employers’ defenses will fail if they intend to argue that a given condition is not a disability that falls within the protections of the ADA.

    Final Thoughts on the Final Regulations

    The ADA Amendments Act and the regulations represent an important and substantive shift in the way employers are interacting with the large number of employees in their workforce who have medical conditions or limitations covered under the law. Dealing with requests for accommodation through the interactive process remains a key function of human resources professionals, and management employees who receive such requests. These new rules are still being developed and interpreted in the courts in decisions like Hoffman.