Labor and Employment

You May Be "Disabled" Under New ADA Rules

Related Item

A police detective who stutters poses an interesting question under the Americans with Disabilities Act. Clearly a speech impediment can be a disability under the ADA definition. It depends on the severity of the impairment and how much it affects the life activity of speaking.

The ADA requires employers to provide reasonable accommodation to let disabled persons perform jobs. The detective has not needed any accommodation to work as a detective. In fact he's been very good at it. The department wants to assign him to a new job as a road officer. It's a department policy to rotate its officers to get them experience in all aspects of police work. If it can offer him a reasonable accommodation for that job, he'll have to take it. The department has said placing him on a day shift, which is less emotionally demanding than night duty, is such an accommodation.

Original Article

Millions of Americans have some sort of disability or handicap, making it difficult and sometimes impossible for them to do many things many of us take for granted. Laws like the Americans with Disabilities Act (ADA) help make sure people with disabilities are treated fairly in practically all aspects of life, such enjoying public places just as much people without disabilities.

However, big changes are in store for the ADA's main focus, jobs, and they may impact you or someone you know.

ADA on the Job

Employment is the main area covered by the ADA. Generally, the ADA makes it illegal for an employer to fire, refuse to hire or make practically any adverse job-related decision based on someone's disability or impairment. In 2009, the ADA was amended, mostly in response to court decisions where, in Congress' opinion, the term "disability" was defined too narrowly. The result in some cases was that people with cancer, diabetes, epilepsy and other impairments were denied protection under the ADA.

The amendments are meant to change that and make it easier for you to show that you have a disability and are protected by the ADA.

New Rules

The Equal Employment Opportunity Commission (EEOC) was tasked with creating new rules or regulations to put the amendments into effect. In March 2011, the EEOC completed the task and published the new rules and published the new rules. Some of the highlights include:

  • The term qualified individual with a disability is no longer used
  • "Disability" still means a physical or mental impairment that substantially limits one or more major life activities; a record (or past history) of an impairment; or being regarded as having a disability, but the amendments changed how those terms are to be interpreted
  • Unlike under the original ADA, an impairment no longer has to prevent or severely or significantly restrict your ability to perform a major life activity to be considered a disability
  • Several diseases or conditions almost automatically qualify as a disability, such as autism, HIV infection, and diabetes

The net effect of these and other changes means more and more workers will be able to claim protection under the ADA, requiring their employers to make reasonable accommodations so they can continue to do their jobs.

The Rules Will Make a Difference

Some lawyers and employers claim that under the new rules

  • Millions of more workers will be covered by the ADA, maybe even the majority of workers
  • Employers will have to show why workers don't need reasonable accommodations, rather than requiring workers to show accommodations are necessary, as they must do under the original ADA

These predictions are uncertain, of course, but the fact is, things will change if the new rules go into effect. Take Teresa Kotwica, for example. She filed an ADA lawsuit against her employer after she was fired from her job as a laborer. She returned to work after 12 weeks' leave for a total hip replacement. She couldn't perform the duties of the job, so she was let go.

Kotwica lost her ADA suit. She was unable to prove that she was a "qualified individual with a disability" - she couldn't prove her hip problems substantially limited her ability to perform a major life activity, such as work.

Kotwica would likely win the same case under the new rules, however, because:

  • "Disability" is interpreted much more broadly and liberally, and likely would cover her hip problems
  • She wouldn't have to prove her hip problems substantially limited her ability to work, but rather that she was fired because of her hip problems

What Steps Can You Take?

The new ADA rules go into effect May 24, 2011, unless Congress decides otherwise. If you have an opinion about the new rules one way or the other, tell your Representatives and Senators in Congress about it.

For employers, it's important to make sure your work policies (firing, hiring, promoting, etc.) fit the new ADA requirements. It's also a good time to review how, if at all, you currently make accommodations for workers with a broad range of medical conditions - from heart problems to chronic illnesses like diabetes.

Employees with disabilities or health conditions should talk to their human resources department or supervisors about any special accommodations they need to help them perform their jobs. Keep records of your discussions and requests, too. If a request is denied, talk to an attorney or file a complaint with the EEOC.

Questions for Your Attorney

  • Do I have to file a complaint with the EEOC before I file a discrimination lawsuit under the ADA?
  • Do I have create a new position or job for a worker with a disability?
  • How long do I have to file an ADA lawsuit or complaint with the EEOC?
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