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Employment Law April

April 27, 2011


The Equal Employment Opportunity Commission (“EEOC”)
has issued new regulations under the Americans with Disabilities Act (“ADA”) in
light of the changes to that law made by the ADA Amendments Act (“ADAAA”).  These new regulations go into effect May
24, 2011.

In passing the ADAAA, Congress’ intent was to have the
statute construed broadly and for the focus to be not on whether a person
(applicant or employee) has a “disability,” but rather on what employers may
need to provide to allow the person to perform his or her job.  The new regulations underscore this intent and
will require employers to carefully evaluate and address situations where an individual
claims to have a disability.

For example, the regulations will, in effect,
eliminate determining, in many situations, whether an impairment is a
disability — a condition that “substantially limits” the ability to perform a
“major life activity.”  The regulations
list various conditions that will be considered disabilities “in virtually all
cases,” including deafness, blindness, intellectual disability (i.e.,
mental retardation), partially or completely missing limbs, mobility
impairments requiring the use of a wheelchair, autism, cancer, cerebral palsy,
diabetes, epilepsy, HIV, multiple sclerosis, muscular dystrophy, major
depressive disorder, and a number of mental diseases (such as bipolar disorder,
obsessive compulsive disorder, and schizophrenia).  In addition, the regulations expand the
non-exhaustive list of major life activities to include sitting, reaching,
bending, lifting, interacting with others, and “the operation of major bodily
functions.” Further, mitigating measures
(such as medicine and prosthetic devices) can no longer be considered in
determining whether a person is disabled.

a result of the ADAAA and these new regulations, disability-related
discrimination claims are likely to increase. Thus, it is imperative for employers to be proactive in instituting best
practices so that such claims can be avoided or, if made, defeated.  Employers should:

•    adopt a policy for disabled employees to request
reasonable accommodations, including centralizing the process for responding to
and handling such requests;

•    review existing policies and procedures and
revise where necessary to be compliant with the statute and regulations;

•    review job descriptions and revise as
necessary to make sure they adequately describe essential job functions;

•    properly train managers and supervisors to:
(i) avoid conduct that can be perceived as discriminatory with respect to a
disabled individual, (ii) not ignore requests for accommodations, (iii)
immediately report any such requests to the proper person (such as the Director
of Human Resources) designated to handle such matters, and (iv) not retaliate
or take other punitive action against the person making a request or otherwise
claiming disability discrimination; and

•    most
, view “disability” broadly and in most situations where a
medical condition or physical or mental impairment is raised with respect to
the ability to apply for or perform a job, engage in, and document, the “interactive
process” with the individual to determine whether he or she requires a
reasonable accommodation and, if so, whether an accommodation can be provided,
and then be able to demonstrate:

•    an
appropriate accommodation was made or that the individual:

•    did not request an accommodation;

•    refused the accommodation(s) offered; or

•    did not meaningfully participate in the
interactive process. 

taking such steps, employers can reduce their risk of liability for violating
the ADA and similar state and local laws prohibiting discrimination on the
basis of disability. 

The contents of this Alert are for informational purposes only, and do not constitute legal advice. If you have any questions about this Alert, please contact a member of the Shulman Rogers
Employment and Labor Law Group  or the Shulman Rogers attorney with whom you regularly work.