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New ADAAA regulations: implications for Workers' Compensation

“People on Workers' Comp leave will be a breeding ground for ADA cases,” Frank Alvarez, a partner at the law firm Jackson Lewis was quoted in a Risk and Insurance article, “Attorney: New ADAAA Regulations Focus More on Employers' Actions.” The regulations, which went into effect May 24, could lead to an increase in lawsuits and may test programs such as pre-employment screenings to assess the physical capabilities of applicants to fulfill necessary job functions.

The ADAAA does not change an employer’s non-discrimination and reasonable accommodation obligations, but it makes them applicable to a much larger group of employees and applicants for employment because of the expanded definition of disability. Alvarez warns employers that they should expect that “most employees who are unable to work for any type of significant period of time will be protected by the ADA.” He goes on to state, “And the regulations clarify that impairments that have an actual or expected duration of less than six months still may be substantially limiting and sufficiently serious to be an actual disability under the ADA, which would trigger reasonable accommodation obligations."

According to John Litchfield of the law firm, Foley & Lardner LLP, one of the major changes to the regulations affects those covered under the “regarded as” prong of the definition of disability. Specifically, the regulations make clear that the concepts of “major life activities” and “substantially limits” are not relevant in evaluating a claim under the “regarded as” prong. In effect, an employee suing under this prong need only show that that his/her employer regarded him/her as having a disability, and that the employer discriminated against the employee because of that perception. The employer need not have considered whether a major life activity was substantially limited based on that perception.

This has implications for pre-employment screenings. Using the example of post-job offer screenings for carpal tunnel syndrome, which did not previously constitute disability under the ADA, Alvarez notes that every one of those individuals is now a viable ADA plaintiff. He further notes that this is happening at a time when the EEOC has a major focus on class action suits, which furthers the risks for employers.

Also falling under the "regarded as" category is the prohibition of "placement on involuntary leave." Alvarez suggests that workers cannot be “underemployed” and the EEOC will be looking to see that there has been a “sufficiently rich examination of alternative ways of performing essential job functions to keep someone fully employed.” Employers cannot be only thinking about limiting the risk of future injuries or automatically relying on a structured transitional work program.

The EEOC regulations also instruct that an employer’s focus should be on whether it has met its ADAAA obligations and not whether an individual’s impairment substantially limits a major life activity. Adverse employment decisions that are based on an individual’s ability to perform a job due to injury or illness have the potential to lead to a contested ADA case.

Employers should approach disability issues conservatively and assume that most impairments are a disability and make reasonable accommodation the cornerstone of their disability policies and practices. Good job descriptions that clearly and thoroughly define the essential functions are the foundation of meaningful dialogue to demonstrate good faith effort to accommodate the employee.