labor lawAdivision of labor law center

Every employer should be aware that the EEOC definition of a disabled employee changes on January 1, 2009.

 

A new law, the Americans with Disabilities Act (ADA) Amendments Act of 2008, or ADAA, expands the definition of disability in the workplace. The original ADA, passed in 1990, requires employers to make reasonable accommodations for employees with disabilities.  Initially the term “employees with disabilities” was interpreted very broadly. A number of court cases have restricted that definition over the years. The 2008 act is a return to the less restrictive definition of disability.

 

The new ADAA even overturns several of the EEOC’s previous regulations regarding who is and is not disabled under the law. The agency is still creating final regulations under ADAA.

 

Under the old EEOC regulations, an employee had to have a condition that “substantially limited” his or her ability to perform one of several “major life activities” in order to be considered. Major life activities included grooming and dressing oneself, shopping and preparing food, taking public transportation or using a phone book.

 

The new ADAA expands that list of “major life activities” to include walking, reading, bending and communicating, among others.

 

In addition, the ADAA adds a new list of major bodily functions that qualify an employee for reasonable accommodations in the workplace. These include “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. While legal experts are still sorting out the details, it would seem that employees with cancer and those who are HIV positive are included now included in the list of employees with a disability, even if they are able to perform all “major life activities.” 

 

The inclusion of reproductive functions in the list of disabilities creates a number of questions. This suggests that employers may be required to make reasonable accommodations for employees with fertility issues. These might include changing an employees schedule to permit her to have IVF (in vitro fertilization) or other treatments for infertility. Previously, many of these issues were covered by FMLA leave, but not considered a disability under ADA.

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