The final rule on the Americans with Disabilities Act Amendments Act (ADAAA) was issued by The Equal Employment Opportunity Commission (EEOC) on Friday, March 25, 2011.  If you have fifteen or more employees, the ADA and ADAAA apply to you.

The ADAAA dramatically expands the population that is considered “disabled” within the meaning of the ADA.  In summary, below are some of the major points of the new regulations:

• It is now unlawful to discriminate not just against individuals with “disabilities” but against anyone because of a medical condition, whether actual, past, or perceived. The term “medical condition” also includes mental/ psychiatric conditions and learning disabilities.
• The new interpretation does not require that a condition severely or significantly restrict a major life activity.
• Protected individuals include those that are regarded as being only impaired.  The only perceived impairments are those that are of duration of less than six months and minor.
• Conditions that are episodic (such as epilepsy) or in remission (such as cancer) are now disabilities under the new EEOC rules.
• The final rule does not change the ADA’s provisions on items such as reasonable accommodation, medical examinations, or confidentiality.

So who qualifies as a disabled employee?  Based on the new broad definition, it may be best to always assume that everyone has an ADAAA disability.  To minimize any impact, it is very important to brush up on the new rules.  And, as you can imagine, employment discrimination attorneys are expecting a jump in lawsuits.

Under the Americans with Disabilities Act, a reasonable accommodation could include reassignment to a “vacant” position.  But how is “vacant” defined?  The 10^th Circuit Court of Appeals has found that a position isn’t “vacant” simply because it is held by a temporary, contract worker.  In Duvall v. Georgia Pacific Consumer Products, the court ruled that there was no duty to provide a reasonable accommodation by assigning a disabled employee to a position held by a temporary employee.  Rather, the court said, “A position is vacant if a similarly situated non-disabled employee could apply for the job.”

In this case the position wasn’t available to any employee because the company decided to staff it with temporary workers until a decision was made as to whether it would be outsourced.  Note, that this ruling only applies to states within the 10^th Circuit (Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming), so employers in other states should be careful in making decisions regarding “vacant” positions.

Under the Americans with Disabilities Act, a reasonable accommodation could include reassignment to a “vacant” position.  But how is “vacant” defined?  The 10^th Circuit Court of Appeals has found that a position isn’t “vacant” simply because it is held by a temporary, contract worker.  In Duvall v. Georgia Pacific Consumer Products, the court ruled that there was no duty to provide a reasonable accommodation by assigning a disabled employee to a position held by a temporary employee.  Rather, the court said, “A position is vacant if a similarly situated non-disabled employee could apply for the job.”

In this case the position wasn’t available to any employee because the company decided to staff it with temporary workers until a decision was made as to whether it would be outsourced.  Note, that this ruling only applies to states within the 10^th Circuit (Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming), so employers in other states should be careful in making decisions regarding “vacant” positions.

The ADA Amendments Act (ADAAA), which became effective on January 1, 2009, didn’t change the basic disability categories under the ADA, however it did change how “disability” could be interpreted. In Hoffman v. Carefirst of Fort Wayne, Inc., an Indiana federal court found that under those amendments an employee is considered “disabled” even if his condition is in remission at the time of an alleged adverse employment action.

The case involved an employee, diagnosed with stage 3 renal cancer a year earlier, who was told that he’d have to start working 65-70 hours/week, instead of his typical 40 hours.  Other service techs, who also delivered oxygen and other medical supplies to patients’ homes, were also required to work the extra hours.  The employee’s doctor provided a note indicating that the employee was limited to 40 hours/week.

The company offered an accommodation that would require the employee to commute (unpaid) 2-3 hours per day to another location.  The employee refused the accommodation and sued.

The court found for the employee, noting that cancer is a covered disability under the ADAAA whether it’s active or in remission.  Consequently, the employee did not need to show that he was substantially limited in a major life activity at the time of the employment action.