Categories: Retail

by Teiko Shigezumi and Carrie Corcoran

The EEOC recently published its long-awaited final regulations (the “Regulations”) and interpretive guidance for the Americans with Disabilities Act Amendments Act (the “ADAAA”), which became effective on January 1, 2009.  The Regulations significantly alter the analysis of “disability” under the Americans with Disabilities Act (“the “ADA”) and reflect Congress’ intention to expand the ADA’s coverage.  The ADAAA retained the ADA’s definition of “disability” as a physical or mental impairment that substantially limits one or more major life activities; a record (or past history) of such an impairment; or being regarded as having a disability. The Regulations, however, alter the interpretation and application of this term in fundamental ways.

For example, the Regulations expanded the list of “major life activities,” to include, among others, eating, standing, thinking, communicating and sleeping.  Moreover, “major life activities” now encompasses “major bodily functions.”  The EEOC sets forth nine “rules of construction” in the Regulations to aid the analysis of whether an impairment substantially limits one or more major life activities.  Further, as required by the ADAAA, the Regulations make it easier for individuals pursuing discrimination claims to establish coverage under the “regarded as” prong of the definition of “disability.”

Although the Regulations do not become effective until May 24, 2011, employers should immediately take them into account in employment decision making, as they will certainly guide EEOC enforcement activities and employee expectations even before the effective date.  For more detailed information about the Regulations, see EBG’s comprehensive Act Now Advisory.

The defense of most ADA claims will now focus on whether the applicant or employee is qualified for the job, whether a reasonable accommodation was offered, whether the employer engaged in the interactive process to discuss possible accommodations in good faith, and whether any employer action was caused by an individual’s disability, record of disability, or being regarded as disabled.  In most cases, to focus on whether the person has a disability would be misplaced.

To help minimize the risk of potential disability discrimination and failure to accommodate claims, employers should take certain actions:

  • Review all job descriptions to assure that they accurately and fully capture all “essential functions” of the job.
  • Train supervisors on the new broad coverage of the ADA and require them to enlist the assistance of Human Resources in the “interactive process” to determine whether a reasonable accommodation can be made.
  • Always engage in the interactive process when there is an accommodation request and fully document your organization’s efforts during the interactive process.
  • Review language in any policies and employee handbook to make sure it is consistent with the ADAAA.
  • Review applications and any inquiries that might elicit information about an applicant’s disability, and determine if they are appropriate.
  • Contemporaneously document all employment actions, decisions, and corrective action involving an employee who is an individual with a disability or has a record of a disability.
Back to Workforce Bulletin Blog

Search This Blog

Blog Editors

Related Services

Topics

Archives

Jump to Page

Subscribe

Sign up to receive an email notification when new Workforce Bulletin posts are published:

Privacy Preference Center

When you visit any website, it may store or retrieve information on your browser, mostly in the form of cookies. This information might be about you, your preferences or your device and is mostly used to make the site work as you expect it to. The information does not usually directly identify you, but it can give you a more personalized web experience. Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change our default settings. However, blocking some types of cookies may impact your experience of the site and the services we are able to offer.

Strictly Necessary Cookies

These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you which amount to a request for services, such as setting your privacy preferences, logging in or filling in forms. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work. These cookies do not store any personally identifiable information.

Performance Cookies

These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated and therefore anonymous. If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance.