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New Disability Rules

​THE AMERICANS WITH DISABILITIES Act (ADA) was amended several years ago by the ADA Amendments Act of 2008 (ADAAA). The Equal Employment Opportunity Commission (EEOC), which enforces the ADA, issued regulations to reflect the changes made by the ADAAA. These final regulations became effective in May of this year, though companies have until March 2012 to be in compliance with certain facets of the regulations, such as those related to construction and building design. It’s critical that companies understand what the ADAAA does and how it affects them.

Under the ADAAA, the bar for being classified as having a disability has been lowered. This was accomplished in part through the interpretation of the definition of “disability.” The three-part definition of disability is essentially the same as the one detailed in the original ADA: a physical or mental impairment that substantially limits one or more major life activities, a record or past history of such an impairment, or being regarded as having a disability.

While the wording of the definition of disability in the ADAAA is technically the same as that in the original ADA, the interpretation of this definition has now been expanded. The “major life activities” component of the disability definition has been expanded into two lists. The first list contains activities that the EEOC had previously recognized, including walking, caring for oneself, eating, hearing, and seeing. The ADAAA adds new activities to this first list, such as reading, bending, and communicating. The second list specifies major bodily functions that, if unable to be performed, classify one as having a disability. This list includes “functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”

Another change is that a disability need not be a lifelong issue. Even if a disability is episodic in nature or sometimes goes into remission, the individual is still disabled if his or her condition would substantially limit a major life activity when the condition is active.

Regarded as. The ADAAA contains a significant clarification to the “regarded as” phrase in the third part of the disability definition. Previously, this could be interpreted as an individual being covered by the ADA if an employer regarded the person as being substantially limited in a major life activity. An individual could initiate an action against an employer for refusal to hire, termination, demotion, failure to promote, unfavorable evaluation, discipline, or failure to reasonably accommodate their disability.

If an employer wronged a disabled individual but did not regard the individual as disabled, or claimed to be unaware of the individual’s disability, the situation changed. Unless the individual chose to challenge their employer’s decision in court, the individual was not disabled and was, therefore, not accommodated.

With the new amendments, an individual is considered “regarded as” disabled if they are “subject to an action prohibited by the ADA,” such as a failure to hire or termination, “based on an impairment that is not transitory and minor.” The focal point is no longer on whether the employer believes that the impairment substantially limits a major life activity. There are now only two elements to “regarded as” coverage: what did the employer do, and why did the employer take that action.

Mitigating Measures 
The law has also been changed to state that the so-called mitigating measures—steps that are being taken to correct or lessen the disability—should not be considered when determining whether or not someone has a disability. This means that a person is considered by law to be disabled regardless of whether or not they are currently using the tools necessary to correct or lessen the extent of their disability. For example, if a person with diabetes is able to control the disease with medication, he or she is still disabled.

The ADAAA provides an exception in the case of ordinary corrective vision tools like regular eyeglasses or contact lenses. A person who wears glasses is not, for that reason alone, a person with a disability under the ADA. The ADAAA does not establish a specific level of visual ability for determining when eyeglasses or contact lenses should be considered “ordinary.” Such cases should be examined individually and will vary based on current medical evidence.

The ADAAA’s prohibition on considering mitigating measures applies only to whether an individual meets the definition of having a disability. However, the positive or negative effects of mitigating measures may be considered when determining whether someone is entitled to accommodation or when someone poses a direct threat.

Companies can take into account both the positive and negative effects of a mitigating measure when making other decisions. Negative effects could include side effects or burdens that using a mitigating measure might create. The EEOC guidance on the ADAAA gives an example of someone with diabetes who might need breaks to take insulin and monitor blood sugar levels, or someone with kidney disease who may need a modified work schedule to receive dialysis treatments. However, the EEOC also notes that if an individual with a disability uses a mitigating measure that results in no negative effects and eliminates the need for a reasonable accommodation, a company has no obligation to provide one.

Service Animals
Another change to the ADA is that surcharges can no longer be assessed for the use of a service animal, even if other guests must pay a fee for pets. The ADAAA also changes the definition of a service animal to dogs only, but it expands the types of services the dogs may provide in order to be considered “service animals.” For example, dogs fall into that category if they are trained to stop people from injuring themselves, remind them to take medication, or help with other psychiatric issues, such as performing room searches or safety checks for people who suffer from post-traumatic stress disorder.

Mobility Devices
The changes also affect businesses’ allowance of mobility devices. While business owners have always been bound to accommodate wheelchairs, they must now also accommodate other power-driven mobility devices being used by a disabled individual, even if those devices are not designed specifically to help the disabled, such as Segways, for example. Businesses must permit these devices to be used in all areas open to pedestrians. The ADAAA does provide an exception, however, if a business can prove that the use of these devices would create a safety hazard, fundamentally alter their services or activities, or limit their ability to provide those services.

There are numerous other ADAAA changes, such as those related to physical accessibility and building design, and changes that relate to specialty industries, such as hotels and ticketing services. Readers are advised to consult with their attorneys regarding how the recent ADA changes may affect their businesses.

Lawsuits relating to the ADAAA will inevitably come about, particularly after the March 2012 compliance deadline. The EEOC is likely to wait until the courts have taken up some key cases before proceeding with further rules or guidance. When the courts reveal some gray areas within the ADAAA, the EEOC will likely issue additional clarification.

Andrew Jensen is CEO of Sozo Firm, Inc., a management consultancy located in Shrewsbury, Pennsylvania.