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By some estimates, at least 2 million Americans will become “disabled” – without any change in their medical condition – on January 1, 2009. That’s because many more people are included in the new 2009 EEOC definition of disability than in the past.

 

According to the EEOC, a number of conditions that have not been considered disabilities in the past, will be disabilities under the law in 2009.

 

That is important news for employers, who must make reasonable accommodations for disabled workers.

 

In the past, under old EEOC guidelines, an employee was not considered disabled if they could complete all “major life functions” like grooming and dressing themselves, using a phone book, and using public transportation. If the employee had a condition that “substantially limited” one or more of those major life functions, he or she met the EEOC definition of a disability. In 2008, an employee with cancer who or AIDS who could complete all of these activities without substantial limitations was not considered disabled.

 

That is an important distinction, because only disabled employees are entitled to reasonable accommodation by employers, under the law.

 

However, under the new EEOC guidelines for the ADAA or ADA Amendment Act of 2008, employees who have an impairment of a major bodily function, are disabled. Some major bodily functions or systems, which when impaired, would be a disability, include:

• Immune system
• Normal cell growth
• Digestive
• Bowel & bladder
• Neurological & Brain
• Respiratory
• Circulatory
• Endocrine
• Reproductive system 

While the EEOC is still ironing out the details on the new regulations, it appears that an employee with cancer would now be considered disabled, because he or she has an impairment of the major bodily function that controls normal cell growth. In addition, if the employee was undergoing chemotherapy, he or she might have an impairment to the immune system.  

 

This list of major bodily functions is by no means complete, and other types of physical disabilities may apply.

 

The ADAA also overturns a previous EEOC regulation, which said that if an employee’s illness is in remission, the employee has no disability. Under the ADAA, if an employee’s condition would substantially limit a major life activity when active, the employee is entitled to accommodation even between episodes or if the condition is in remission. This might suggest that employers would have to provide adjustments to work schedules to accommodate doctor’s visits, even when an employee’s cancer or rheumatoid arthritis was in remission.

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