labor lawAdivision of labor law center

On September 23, 2009, the EEOC published proposed rules regarding disabilities in the Federal Register.

 

These new rules change the definition of a disability under the ADAAA, the ADA Amendments Act of 2008, which went into effect on January 1, 2009. That law requires the EEOC to interpret the term “disability” broadly.

 

The law returns the meaning to disability to that enforced by the EEOC in 1990 soon after the ADA was passed. Over time, the courts have continually eroded the definition of disability under the law, requiring more proof of more severe impairments.

 

Some of the notable changes that employers need to be aware of:

 

An impairment that substantially limits a major bodily function is sufficient to constitute a disability. Under the old regulations, a condition like cancer or AIDS did not in and of itself, constitute an impairment. The employee had to show that he or she was limited in major life functions by the condition. Under the new regulations, such a condition in and of itself is a disability.

 

Mitigating measures must be disregarded. Some people have a disability but are able to function fully with a prosthesis or enabling device. Under the old definition, these employees were not disabled. Under the new definition, the employee’s abilities without the mitigating measures must be considered.

 

Suppose employee Jane has had one leg amputated below the knee. Jane uses a prosthetic leg, and is fully able to complete all major life activities with it. Under the old definition, Jane was not an employee with a disability. Today, she is. This means that when Jane needs several weeks off to fit a new prosthesis, she must be granted that time as a reasonable accommodation to an employee with a disability.

 

However, under this new rule, ordinary eyeglasses and contact lenses need not be disregarded as mitigating measures. So an average employee who wears glasses is not disabled.

 

Impairments that are episodic or in remission are disabilities if they would be substantially limiting when active. Under the old regulations, an employee whose rheumatoid arthritis or lupus was in remission, was not a disabled employee. Under the new regulations, if the condition (cancer, HIV/AIDS, fibromyalgia, multiple sclerosis, etc.) would be a disability when not in remission, it is a disability while in remission. This enables employees with multiple sclerosis, rheumatoid arthritis, and similar conditions to take time off under ADA for doctor’s appointments or therapy.

 

 

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