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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. (more…)

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 (more…)

 Employers should be aware that GINA imposes even more stringent confidentiality laws than HIPAA does, regarding genetic information and an employee’s family medical history.

On November 21, 2009, Title II of GINA, the Genetic Information Nondiscrimination Act, will go into effect. This portion of the law prohibits employees from discrimination against an individual based on genetic testing. Title I of the law, which went into effect in May 2009, prohibits health insurance providers from discrimination against an individual based on genetic testing.

For example, a health insurance company could not refuse to cover an individual because he or she had a genetic predisposition for breast cancer, diabetes or heart disease. Nor could an employer refuse to hire an employee, based on that genetic information. In fact, it would be a violation of the law for the employer to even acquire information about an employee’s genetic profile.

More than 13 years in the making, GINA was signed into law by President George W. Bush on May 21, 2008.  The law was passed partly out of concern that individuals were refusing genetic testing, which might have improved their health care, because they feared discrimination from employers or health insurance providers.

The EEOC recently released GINA guidelines for employers to be in compliance with this new law.

Under Title II, GINA prohibits employers from intentionally (more…)

The EEOC on April 22, 2009 released guidelines of best practices for employers who have workers with personal care-giving responsibilities.

Many employment law experts take exception to this action by the EEOC. They point out that no federal (and few state) laws specifically protect caregivers from discrimination. One SHRM representative rather caustically remarks that the EEOC has enough to do, enforcing discrimination based on race, color, religion, national ancestry, sex, pregnancy, disability and age, without branching out into more controversial areas.

The EEOC, however, contends that most caregivers are covered under several existing laws including:

• The Americans with Disabilities Act, which prohibits discrimination based on association with a disabled person. This law would protect an employee who was caring for her developmentally disabled adult sister, or a grandparent who was in a wheelchair
• Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on sex or race, when caregivers are treated disparately. For example, an employer may assume that a female caregiver with a disabled child cannot travel, and therefore is not eligible for a promotion. Or, the employer may assume that a male employee cannot or should not have caregiver responsibilities.
• FMLA, the federal Family and Medical Leave Act, which permits employees to take up to 12 weeks of unpaid, job-protected leave to care for a parent, son or daughter or spouse with a serious health condition. Employers are legally required to notify the employee within 5 days of an absence that could qualify as FMLA. Instead, many employers deny time off to workers with care-giving responsibilities.

Even the EEOC admits that these guidelines are a bit of a reach. “Federal law (more…)

Since 2006, the EEOC has focused on a new type of discrimination in the workplace – discrimination against caregivers.

Now the EEOC has released  best practices to avoid caregiver discrimination. The 10-page document outlines steps employers can take to avoid this increasing type of illegal discrimination.

Employers should note that no federal law currently makes caregivers a protected class. However, the EEOC is increasingly investigating and in some cases filing suits on complaints from caregivers.

Caregiver discrimination is an easy mistake for the employer to make. Suppose Sue has two daughters under the age of 6. One of her daughters has special needs due to a congenital disability. Sue’s employer decides not to promote her to a regional sales position that requires travel, because of her personal situation. The employer assumes that Sue will be unable to travel, or will do a poor job in the new position, because of her caregiver responsibilities. This is illegal discrimination. Sue is losing out on a promotion she would otherwise receive, simply because she is associated with a disabled person – a type of illegal discrimination prohibited under ADA, the Americans with Disabilities Act.

Sue may also be the target of illegal discrimination based on sex under Title VII of the Civil Rights Act of 1964, if a male employee in the same situation would be promoted.

Caregiver responsibilities can include (more…)