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Disability Action Center NW

Employers Gird for Disabilities Act Changes

Amendments to the Americans with Disabilities Act that take effect on May 24 are intended to make businesses focus on accommodation. An attorney explains what owners should expect and do

By Karen E. Klein

Recent amendments to the Americans with Disabilities Act widen the range of disabilities and shift the burden of proof from employees to business owners in labor disputes, says Jeff Nowak, a labor and employment attorney at Franczek Radelet in Chicago. The new regulations issued last month by the U.S.Equal Employment Opportunity Commission were mandated by the ADA Amendments Act of 2008 and will take effect on May 24. In fiscal year 2010, there were 25,165 disability discrimination charges filed with the EEOC, up from 21,451 charges in fiscal year 2009.Nowak says employers will have to spend more in the future to accommodate disabled employees and assign staff to handle impairment requests. He spoke recently to Smart Answers columnist Karen E. Klein. Edited excerpts of their conversation follow.

Karen E. Klein: How do the amended rules compare to the original Americans With Disabilities Act of 1990?

Jeff Nowak: The amendments were enacted on Sept. 25, 2008, and became effective on Jan. 1, 2009. The law made a number of significant changes to the definition of “disability” under the Americans with Disabilities Act (ADA). Congress approved the final regulations drafted by the EEOC on a bipartisan vote and they were published last month.

As originally enacted, the ADA defines someone with a disability as one who has a physical or mental impairment that substantially limits one or more major life activities. Individuals also may be protected by the ADA if they are regarded as having a disability, such as HIV, or having a record of a disability, such as alcoholism.

What does the amended law change?

It did nothing to change that basic definition. However, since the ADA took effect, the courts have construed the definition in a relatively narrow fashion. So a court could dispose of a case alleging discrimination by finding that the individual was not actually disabled.

The amendments make sweeping changes in the manner in which these terms now are construed. The final regulations include specific language that says the term “disability” should be broadly construed to the maximum extent permitted by the terms of the ADA.

The message from Congress and the EEOC for business couldn’t be any clearer: Stop focusing on whether someone is disabled and focus on the potential discrimination and reasonable accommodation.

These new regulations list certain impairments that the EEOC says will virtually always be found to be a disability. What are those conditions?

They include deafness, blindness, autism, cancer, cerebral palsy, diabetes, epilepsy, and major depression. It’s not a per se list, stating that every one of these conditions will always be considered a disability, but it went nearly that far.

What’s interesting about this list is the EEOC has always taken the position that you have to conduct an individual assessment to see what the person can or can’t do before you make a determination of disability. For instance, I can’t assume that diabetes is a disability until I make an assessment of the employee’s disability. Now the burden is shifted to the employer to prove it does not constitute a disability.

Certainly if someone is blind or in a wheelchair with cerebral palsy, there’s not much dispute that they’re disabled.

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