labor lawAdivision of labor law center

Many employers struggle to understand the new EEOC definition of disability under the ADA, the Americans with Disabilities Act.

 

The ADAAA or ADA Amendments Act of 2008, significantly increases the number of employees who are considered disabled under the ADA. In fact, some estimates are that the ADAAA has tripled the number of “disabled” employees, simply by changing the definition of disabled.

 

In fact, according to SHRM, the Society for Human Resource Management, the majority of employees over the age of 50 may now be covered under ADA. That is because all that is required under the new regulations is that the individual have some deterioration in their body, and most individuals over 50 have such deterioration.

 

The new definition of disabled includes individuals with a compromised immune system, meaning anyone who is HIV positive or undergoing chemotherapy or radiation. It also includes individuals with a disease that is in remission (such as lupus) and those with a condition that, if untreated, could result in disability, such as an eye infection.

 

All of these changes simply mean that when an employee requests an accommodation, in most cases the employer cannot argue that the worker is not “disabled” and therefore not covered under ADA.

 

According to the U.S. Department of Labor, the ADAAA changes the emphasis of this law from “who is considered disabled?” to “are employers doing everything they are supposed to under the ADA?”

 

The fundamentals of the ADA have not changed. An employer must make reasonable accommodations for an employee with a disability, unless that accommodation is an undue hardship for the employer. Disabled employees are still held to the same performance standards as other employees regarding qualify and quantity of work. The disabled employee must be able to complete his or her essential job duties.

 

This means, of course, that many, many employers are having to grant more reasonable accommodations than ever before.

 

The key to successfully negotiating the ADAAA is open, respectful, two-way communication between disabled workers and their employers. Especially, employers need to ask what accommodations an employee needs, and to think carefully before rejecting any suggestion. If the employer must reject a suggestion as an undue hardship, then the employer should offer an alternative solution, whenever possible.

 

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