Monday, October 12, 2009

Changes to Definition of Disability

The EEOC published proposed rule regarding disabilities in the Federal Register on September 23, 2009. The new rules give a new definition of a disability under the ADAAA, the ADA Amendments Act of 2008, which went into effect on January 1, 2009. Now the EEOC interpret the term “disability” broadly in accordance with the law.

The law returns the meaning to disability to that enforced by the EEOC in 1990 soon after the ADA was passed. Over time, the courts have eroded the definition of disability under the law. It’s requiring more proof of more severe impairments.

The following are some of the notable changes that employers need to be aware of.

An impairment that substantially limits a major bodily function is sufficient to constitute a disability. It’s different from the old regulations. Under the old ones, cancer or AIDS did not in and of itself, constitute impairment. If the employee was limited in major life functions by the condition, he had to show it. However, such a condition in and of itself is a disability under the new regulations.

Mitigating measures must be disregarded. Under the old definition, these employees who have a disability but are able to function fully with prosthesis or enabling device were not disabled. Under the new definition, the employer must consider the employee’s abilities without the mitigating measures.

If they would be substantially limiting when active, impairments are disabilities if they are episodic or in remission. An employee whose rheumatoid arthritis or lupus was in remission was not a disability employee under the old regulations. Under the new regulations, if the condition would be a disability when not in remission, it is a disability while in a remission.

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