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Best Practices for Compliance with the New ADA Regulations

The Equal Employment Opportunity Commission (“EEOC”) recently issued the final Regulations interpreting the ADA Amendments Act of 2008 (“ADAAA”).  The Regulations become effective on May 24, 2011.  It has taken the EEOC over two (2) years from the effective date of the ADAAA (January 2009) to issue the regulations.   The ADAAA and the Regulations are designed to change the focus of inquiries under the American with Disabilities Act of 1990 (“ADA”) from whether an individual’s impairment meets the definition of a “substantial impairment” that constitutes a disability, to issues of discrimination, qualifications, the interactive process, and reasonable accommodation.

The Regulations also lower the bar for finding a “substantial limitation,” and the Regulations take the position that an impairment need not last a particular length of time to qualify under the ADAAA –an impairment lasting less than six months can be “substantially limiting.”  Most ADA claims will now focus on whether the employee is qualified for the job, whether a reasonable accommodation was offered, whether the employer engaged in the interactive process to discuss possible accommodations in good faith, and whether any employer action was caused by an individual’s disability, record of disability, or being regarded as disabled.

Employers should anticipate a rapid escalation in the number of disability discrimination claims made once the Regulations become effective and immediately address the key aspects of the Regulations to minimize the risks for potential claims and costly litigation.

What Employers Should Do Now To Avoid Claims:

  • Develop and implement an ADA policy and protocol that sets forth the procedure that disabled employees should utilize to request a reasonable accommodation.  Contemporaneously document the “interactive process.”
  • Review and revise job descriptions to assure that they accurately and fully capture all “essential functions” of the job.
  • Train supervisors on the new broad coverage of the ADA and require them to enlist the assistance of Human Resources in the “interactive process” to determine whether a reasonable accommodation can be made.
  • Utilize proactive performance management and train supervisors of the importance of accurate and timely documentation of deficient performance or violation of your organization’s policies.