May 15, 2011 | by Attorney Michael Doherty

The Equal Employment Opportunity Commission (“EEOC”) has recently released new regulations that provide guidance for interpreting which impairments qualify as a “disability” under the Americans with Disabilities Act Amendments Act (the “Act”).  Most importantly, the EEOC’s regulations create a new category of disabilities that will “virtually always” qualify as a disability.  According to the new regulations, the following impairments will “virtually always” be recognized as a disability:

  • Deafness;
  • Blindness;
  • Intellectual disability;
  • Partially or completely missing limbs;
  • Mobility impairments that require use of a wheelchair;
  • Autism;
  • Cancer;
  • Cerebral palsy;
  • Diabetes;
  • Epilepsy;
  • HIV Infection;
  • Multiple sclerosis;
  • Muscular dystrophy;
  • Major depressive disorder;
  • Bipolar disorder;
  • Post-traumatic stress disorder;
  • Obsessive-compulsive disorder; and
  • Schizophrenia.

If an employee is diagnosed with any of the above enumerated conditions, the employee likely is entitled to some kind of reasonable accommodation to perform the functions of their job.  The new regulations also make clear that any impairment, irrespective of its duration, can qualify as a disability.

In addition, the new regulations restrict an employer’s ability to consider “mitigating measures.”  Previously, employers could consider assistance devices, such as hearing aids, when determining the extent of an employee’s disability.  However, the new regulations require consideration of the employee in their “natural state,” with the limited exception of eyeglasses and contact lenses, when assessing the extent of a disability.

The new regulations take effect on May 24, 2011.  Prior to the new changes taking place, employers are advised to review the regulations with management and staff.  In the event of a legal challenge, the new regulations will place a greater emphasis on what, if anything, was done to accommodate the employee, rather than if the employee is disabled.  As a result, more than ever, employers need to document all steps taken to accommodate employees, and keep a record of all interactions had with an employee about a disability issue.

If you have any questions, or wish to inquire further about these recent changes in the law, please contact Michael P. Doherty at Doherty, Ciechanowski, Dugan & Cannon, P.C.