A New, and Dangerous, Americans With Disabilities Act

On June 24, 2011, a striking new battery of EEOC regulations became effective, dramatically changing the employment law fundamentals of the Americans with Disabilities Act. In the process, much of what was the right way to handle ADA issues since 1990 was transformed into the wrong way to handle ADA issues from that date forward.

What normally follows legal changes of this magnitude is a torrent of lawsuits filed by well-advised employees against ill-advised employers. Here is what you need to know to begin the process of managing these risks.

Since its enactment, the ADA has mandated that an employer must provide a "reasonable accommodation" to a qualified employee who has a "disability" so that the employee would thereby be enabled to do his/her job. The working definition of "disability" has always been (with key words bolded) "a physical or mental impairment that substantially limits a major life activity." Literally by definition, not every impairment was a "disability" that would trigger ADA responsibilities - only those conditions that a) substantially limited b) a major life activity mattered. Less than substantial limitations, or substantial limitations on less than major life activities, would not be legally significant.

Until now. In two very important ways, the new EEOC regulations have changed all that.

First, one would think that the phrase "substantially limits," as in "substantially limits a major life activity," means what it says. Limits a considerable amount. Or limits a lot. Or limits to a significant extent. But, as of June 24, here's what the EEOC now says "substantially limits" means: "An impairment does not need to prevent or severely or significantly restrict a major life activity to be considered 'substantially limiting.'"

Really? An impairment can "substantially limit" a major life activity even if it does not significantly restrict that major life activity?

Second, one would also think that an impairment of a "major life activity" would, well, mean an impairment of a major life activity. Not anymore. As of June 24 the definition of an impairment of a major life activity includes an impairment of a person's major bodily functions - immune system, digestive system, reproductive system, endocrine system, musculoskeletal system, and so on -- even if, says the EEOC, the impairment to those functions does not affect the person's life in a significant way.

Seriously? A life activity can be "major" even if that life activity is insignificant?

Bottom line: the words of the ADA no longer mean what they say. As of June 24, almost anything will be a "disability" covered by the ADA, which will lead to an influx of ADA-based disability claims from employees who do not seem to be impaired in any significant way. You'll need to make sure your company is geared up to respond properly. Depending on common sense alone can result in substantial liabilities.

The take-away from all this is that employers who, understandably, assume that employees who run marathons and bench press 400 pounds cannot be "disabled" will pay a steep price. Get counsel to help you make the difficult calls, but your company mindset needs to focus much less on whether an employee is disabled (because almost any condition will be a "disability" after June 24) and much more on understanding and implementing the interactive dialogue and reasonable accommodation requirements of the ADA. If your executives, managers and supervisors are not conversant with those requirements, get the proper advice as soon as feasible.

Implementing this approach is a two-step process.

First, the new ADA effectively mandates that you make major revisions to ADA policies, procedures and forms, both in respect to employee handbooks and in the instructions provided to executives, managers and supervisors confronted with potential ADA issues.

Second, words on paper will not be enough: executive, managerial and supervisory personnel must be trained to properly react to this new, confusing and counter-intuitive reality.

Let us know if we can help.