Human Resources News & Insights

Everything HR needs to know about new ADA guidance

The Equal Employment Opportunity Commission (EEOC) just unleashed over 40 pages of revised guidance on a handful of disabilities that many HR pros deal with regularly. In case you don’t have time to slog your way through it all, here’s an extensive overview.

The agency has revised its guidance and Q&A forms for four medical conditions – cancer, diabetes, epilepsy and intellectual disabilities.

The reason: Ongoing confusion from employers about how the Americans With Disabilities Act Amendments Act (ADAAA) applies to the four impairments.

You of course remember that the ADAAA significantly expanded what qualifies as a disability and, essentially, made it easier for employees to qualify as disabled.

Based on recent in-depth reviews of the guidance thus far by employment attorneys across the US, the guidance, unlike other “helpful” info released by the feds, could actually be beneficial to HR pros.

A couple notable sections from the Q&As that every HR pro should know:

  • The EEOC has revised the definition of intellectual disability.
    Intellectual disabilities are now “characterized by significant limitation both in intellect functioning and in adaptive behavior that may affect many everyday social and practical skills.”
  • Employees and applicants with epilepsy can still qualify to operate Commercial Motor Vehicles requiring people to meet certain physicals standards set by Department of Transportation regs.

They’ll ‘almost always’ be disabilities

One of the most beneficial sections of each Q&A, according to Koryn McHone of Barnes & Thornburg, is an explanation as to why each of these four conditions “almost always” qualify as disabilities:

Cancer

People who currently have cancer, or have cancer that is in remission, should easily be found to have a disability … because they are substantially limited in the major life activity of normal cell growth or would be so limited if cancer currently in remission was to recur.

Similarly, individuals with a history of cancer will be covered … because they will have a record of an impairment that substantially limited a major life activity in the past.

Finally, an individual is covered … if an employer takes a prohibited action (for example, refuses to hire or terminates the individual) because of cancer or because the employer believes the individual has cancer

Diabetes

Individuals who have diabetes should easily be found to have a disability …. because they are substantially limited in the major life activity of endocrine function.

Additionally … diabetes is a disability even if insulin, medication, or diet controls a person’s blood glucose levels.

An individual with a past history of diabetes (for example, gestational diabetes) also has a disability within the meaning of the ADA.

Finally, an individual is covered under the third (“regarded as”) prong of the definition of disability if an employer takes a prohibited action (for example, refuses to hire or terminates the individual) because of diabetes or because the employer believes the individual has diabetes.

Epilepsy

Individuals who have epilepsy should easily be found to have a disability … because they are substantially limited in neurological functions and other major life activities (for example, speaking or interacting with others) when seizures occur.

Additionally … epilepsy is a disability even if medication or surgery limits the frequency or severity of seizures or eliminates them altogether.

An individual with a past history of epilepsy (including a misdiagnosis) also has a disability within the meaning of the ADA.

Finally, an individual is covered under the third (“regarded as”) prong of the definition of disability if an employer takes a prohibited action (for example, refuses to hire or terminates the individual) because of epilepsy or because the employer believes the individual has epilepsy.

Intellectual Disabilities

Individuals who have an intellectual disability should easily be found to have a disability … because they are substantially limited in brain function and other major life activities (for example, learning, reading, and thinking).

An individual who was misdiagnosed as having an intellectual disability in the past also has a disability within the meaning of the ADA.

Finally, an individual is covered under the third (“regarded as”) prong of the definition of disability if an employer takes a prohibited action (for example, refuses to hire or terminates the individual) because of an intellectual disability or because the employer believes the individual has an intellectual disability

EEOC’s stance

Yes, the EEOC has revised their guidance on these four conditions, but certain things haven’t changed.

Attorneys from Miller & Martin outlined a handful of reminders about some basic EEOC positions, including:

  • Firms cannot ask applicants if they have or ever have had any of these conditions.
  • After making a job offer, general questions about a staffer’s health are OK, as is a request for a medical examination. But those requests must be consistent for all employees.
  • Employers are on the hook for accommodating both a worker’s disability and the disabling effects of the treatments for that disability.
  • Companies are allowed to ask staffers about these disabilities as part of a voluntary wellness program.

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