Jan offers ADA Amendments Act Guidance
August 3, 2009
This article was taken from the following web link:
http://hr.cch.com/news/hrm/011509a.asp
Without EEOC regulations, JAN offers ADA Amendments Act of 2008 guidance
While the US Equal Employment Opportunity Commission (EEOC) has not yet completed regulations for the ADA Amendments Act of 2008 (ADAAA), the Office of Disability Employment Policy's Job Accommodation Network (JAN) has developed both a publication and a resource page on the Act, which took effect on January 1, 2009.
Included in the publication are practical tips for employers, including: (1) reviewing job descriptions, qualification standards and accommodation procedures; (2) focusing on performance and conduct; (3) training frontline supervisors and managers; and (3) documenting actions and decisions. The publication will be periodically updated as additional information is made public.
The new publication in JAN's Accommodation and Compliance Series, called The ADA Amendments Act of 2008 ( http://www.jan.wvu.edu/bulletins/adaaa1.htm ), provides guidance on the ADAAA's definition of "disability" and "substantially limits, explaining that the threshold coverage issue of whether an individual is disabled under the ADA's employment title is broad and will not be as high of a standard. In addition, the publication confirms that mitigating measures, which include medication, use of assistive technology, reasonable accommodations or auxiliary aids/services and learned behavioral or adaptive neurological modifications, will not be considered in determining whether an individual is disabled. However, the ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses will be considered in determining whether an impairment substantially limits a major life activity.
For the first time, notes the publication, the ADAAA also directly places in the ADA itself a non-exhaustive list of major life activities, including caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. The law also expands the category of major life activities to incorporate the operation of major bodily functions, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
For example says JAN, a person with insulin-dependent diabetes will most likely be covered under the first part of the new definition of disability because courts will consider what his limitations would be without his insulin and because endocrine system function will definitely be considered a major life activity as of January 1, 2009.
The publication also confirms that the ADAAA also removes from the "regarded as" prong of the disability definition the requirement that an individual demonstrate that he or she has, or is perceived to have, an impairment that substantially limits a major life activity. Under the ADAAA, individuals can establish they are "regarded as" disabled by showing that they have been subjected to adverse action under the ADA because of an actual or perceived physical or mental impairment.
The definition is subject to two important limitations.
• First, individuals with impairments that are transitory and minor are excluded from eligibility for the protections of the ADA under the "regarded as" prong.
• Second, the ADAAA relieves entities covered under the ADA from the obligation and responsibility to provide reasonable accommodations and reasonable modifications to those who qualify for coverage under the ADA solely by being "regarded as" disabled.
A transitory impairment is defined as an impairment with an actual or expected duration of six months or less. The "regarded as" prong is now very broad.
Additional ADA publications can be found at JAN's ADA resource page:
http://www.jan.wvu.edu/LINKS/adalinks.htm .
