May 23, 2011 marked the first day the new Americans with Disability Act regulations were effective. The new rules will be a challenge for employers because of adoption of the expansive definition of “disabled.” On the other hand, the law is a serious win for employees. The previously restrictive definition of what constitutes a “disability” is done away with and almost no prior case law on the subject can help with interpretation. As for employment attorneys, it is pretty exciting-regardless of which side of the fence you land on.
The bottom line is this: it is unlawful to discriminate against any individual because of a medical condition (physical, mental/psychiatric, and learning disabilities all included), whether that condition is present, past, or perceived. If the employee brings the cause of action under the “regarded as” prong, the only impairments that do not count are those that are transitory (less than six months and minor).
A couple of notes to employers: first, review your medical leave and termination procedures. With these new regulations, you may need to evaluate an employee’s request for medical leave more closely than you have in the past. You should also not assume that extended leave for a medical condition, once FMLA leave is exhausted, provides a basis for termination. Second, if your company uses medical screenings, you may want to review the list of conditions that disqualify a potential new hire.
Notes to employees: if you think any of this applies to you, you are probably right and should consult a lawyer to be sure. Even if you do not think of yourself as “disabled,” you may be within the purview of the new regulations.
By: Chelsea Long