A federal agency has just released major new guidelines for disabled employees and their employers, with the goal of helping both understand just who is entitled to disability-related accommodations and exactly what those accommodations may include.  I have thoroughly analyzed them, and I believe the guidelines will greatly ease the effort to help disabled employees protect their rights.   Even though the law protecting disabled employees (the Americans With Disabilities Act, or ADA) was passed twenty years ago,  there has been great confusion about what qualifies as a “disability” and, just as importantly, what constitutes an “accommodation.”

On January 1, 2009 Congress passed a law significantly expanding the ADA.  The law, known as the ADA Amendments Act (ADAAA), was a major overhaul of the original ADA.  While the core wording of the term “disability” remains the same, because it still means an impairment that substantially limits one or more major life activities, the meaning of these terms (“impairment,” “substantially limits” and “major life activities”) have been broadened.  In addition, the new guidelines focus more heavily on an employer’s obligations and whether those obligations have been met.

Call me if you’re you’re looking for an accommodation and are not sure whether you have an impairment, whether you’re substantially limited, or whether your limitation affects a “major” life activity.  The analysis whether you are disabled depends heavily on your condition(s) and on how they affect you personally.  One person might be disabled by a bipolar disorder condition while another may not.  One might be disabled by a stroke and another may not.   The ADA and its new companion, the ADAAA, are among the most technical employment laws ever adopted.  They apply to employees who are currently disabled, to employees who are formerly disabled, and to people who’ve never been disabled but are perceived that way.  Moreover,  the definition of “disability” under the ADA and ADAAA is a specialized definition and is different than the definition used, for example, by state agencies in deciding who qualifies for a handicapped parking tag. It differs, too, from the meaning of the term as used by the Social Security Administration in awarding disability benefits.  Experience in employment discrimination law is invaluable in correctly evaluating a disabled employee’s right to protection.

Let’s walk through some of the key elements of the new guidelines.

• First, the new regulations make it clear that the effects of an impairment lasting or expected to last fewer than six months can be substantially limiting.  This is an enormous advance in the law for disabled employees.  Historically, disabilities that were not permanent were generally not covered by the ADA.  Truly transitory, or temporary, conditions are still not covered, but the new guidelines do open the door for protection for conditions of much shorter duration than before.
• Second, corrective measures are generally not to be taken into account when deciding if a disabling condition is “substantially limiting.”  In other words, even if you have medicine that corrects your condition, the analysis whether your condition is substantially limiting is not affected by the fact that medication can solve the problem.
• Third, the new guidelines include a list of impairments that will nearly always be “disabilities” under the law that entitle the sufferer to protection.  These include deafness; autism; blindness; cerebral palsy; bipolar disorder; diabetes; epilepsy; HIV infection; multiple sclerosis, muscular dystrophy; major depressive disorder; post-traumatic stress disorder; obsessive compulsive disorder; and schizophrenia.
• Fourth, the new ADAAA regulations make it clear that your impairment does not have to prevent you specifically, or severely restrict you specifically, from performing a major life activity.  It is enough that the impairment substantially limit your ability to perform a major life activity as compared to most people in the general population.

If you’re not sure about your rights, don’t hesitate to ask.   You might be entitled to more protection than you think.

Categories: Disability Discrimination, Discrimination