labor lawAdivision of labor law center

The federal EEOC just published new regulations that redefine disability under the Americans with Disabilities Act.

 

The new regulations specifically address the definition of disability within the ADAAA of 2008, which has been in effect since January 1, 2009.

 

Under the new rule, certain impairments will create a presumption of disability. These impairments include epilepsy, diabetes, multiple sclerosis, developmental disabilities, deafness, blindness, use of a wheelchair due to mobility problems, autism, cerebral palsy, HIV/AIDS, muscular dystrophy, major depression, bipolar disorder, partial or complete amputations, post-traumatic stress disorder, obsessive-compulsive disorder and schizophrenia.

 

The new ADA rules mean that an employee who has been diagnosed with any of those conditions is presumed to be disabled and entitled to reasonable accommodation.

 

This may seem to be a common-sense approach to disabilities, but it has not always been so.

 

Under the old rules, each employee claiming a disability had to individually demonstrate that the condition limited one or more major life activities. A very large company might have 10 blind employees. Each blind employee would have to individually prove that blindness impaired their performance at one or more major life activities like reading, walking, using a phone book, using public transportation, cooking, shopping, personal grooming, etc.

 

An individualized assessment of whether a substantial limitation exists should still be done, according to the EEOC. However, the federal agency claims this “can be done very quickly and easily with respect to these types of impairments, and will consistently result in a finding of disability.”

 

Employers should note that the list of impairments is not exhaustive. Other conditions may still be disabilities under the new definition. Some conditions such as asthma, learning disabilities and back or leg impairments may be disabilities for some employees, and not for others.

 

Another change from the previous definition of disability is the use of mitigating measures that may reduce the effects of an impairment. Mitigating measures must not be included in the assessment now. An example would be an artificial leg. An amputee might be unable to walk or complete normal life activities without the artificial limb, but unimpaired when the prosthesis is in place. Prior to 2009, the employer had to assess the employee’s abilities with the artificial leg. Under the current definition, the employee will be considered disabled if he or she is impaired without the leg. The mitigating measure – the artificial leg – cannot be included in the assessment.

 

The only mitigating measures that can still be included are ordinary eyeglasses or contact lenses.

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