On May 24, the final regulations for the ADA Amendments Act of 2008 will take effect.
Attorneys and others familiar with the Act note that the regulations could change how you think about the Americans With Disabilities Act.
Notice we said “change how you think about.” Your goal is no longer to determine whether or not an employee is disabled. Instead, you should be ensuring that you are meeting your obligations to provide “reasonable accommodation” regarding the disability.
That’s because these regulations, which were first published on March 25, are intended to greatly broaden the coverage of the ADA.
You may not notice this at first, as the definition of a “disability” in the Act has not changed. The Act still defines a disability as: (A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.
What has changed is that a much greater number of people can now be regarded as having a disability, e.g. an impairment that “substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.”
Under the new regulations, the definition of “life activity” is interpreted much more broadly; the U.S. Supreme Court used to maintain that a life activity must be of “central importance to most people’s daily lives.” Now, there is no clear standard. The impairment doesn’t have to prevent a person from performing a life activity – or even prevent the person from being successful at the life activity.
Further, the employee doesn’t have to be currently suffering from the disability. Now, the ADA covers an employee who previously had an impairment and now needs to take leave or make a schedule change to allow for follow-up health care provider appointments.
If it seems that you shouldn’t even bother determining whether the employee actually has an impairment or a disability, you are correct. The new regulations are intended to refocus employers. Many law firms go so far as to state than when an employee claims an impairment, you should actually assume that the employee is covered under the ADA.
This is important at time when disability discrimination charges already have topped 25,000 cases in 2010, a record high in the U.S. With the new regulations, that number could go up significantly in 2011.