Proposed Regulations Regarding the ADA Amendments Act of 2008 Print

The EEOC has today issued its proposed regulations regarding the ADA Amendments Act of 2008. Public comments are entertained through November 23, 2009 after which final regulations will be issued. The proposed rules focus on Congress’s desire to broaden the concept of “disability” by specifically overruling several United Supreme Court Cases that were deemed too constrictive. They can be reviewed at http://www.eeoc.gov/policy/docs/qanda_adaaa_nprm.html.

 Among other changes, the term “substantially limits” is made less restrictive; “major life activities” are expanded via two non-exhaustive lists; mitigating measures, other than ordinary eye glasses, shall not be considered when assessing disability, although they may be considered when assessing reasonable accommodations; impairments in remission or which are episodic may be deemed a disability if a major life activity is substantially limited when active (e.g. epilepsy, asthma, diabetes, major depression, etc); and  “regarded as” claims are made less burdensome for claimants by eliminating the requirement that the claimant show that the employer believed the impairment/perceived impairment “substantially limited performance of major life activity”.

The proposed rules do not change the definition of “qualified”, “direct threat”, “reasonable accommodation” (except employers do not have to provide a reasonable accommodation to employee who only meets the definition of “regarded as” disabled) or “undue hardship”.

The definition of “impairment” under the Maine Human Rights Act was already broader than the ADA prior to the ADA Amendments Act of 2008 and, so practically speaking, Maine employers complying with the Maine Human Rights Act should be in good shape addressing these changes in Federal law. However, there may be a spike in disability-based claims based on publicity surrounding the roll out of these new regulations in what is already a challenging employment environment economy-wise.

Employers should make sure job descriptions are in writing and up to date; have appropriate policies that inform employees about reasonable accommodations and the protocol to request them; train supervisors to be cognizant of disability/impairment issues and documentation generally;  perform and document appropriate individualized assessments (the interactive process) regarding any determination of disability and effective reasonable accommodations; and document any decision that is deemed an undue burden.

If you have any questions about this or any legal matter,
please don’t hesitate to contact the attorneys at Taylor, McCormack & Frame.
 
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