New ADAAA Regulations and Small Business EPLI, Part One

New regulations to the American Disabilities Act Amendment Act (ADAAA) issued last March go into effect May 24, 2011. The new regulations broaden the definition of disability and, in the process, broaden every business’s exposure to charges of discrimination from employees, former employees, interns, volunteers and job applicants. Defending against employer discrimination lawsuits can be financially devastating, especially if you’re a small business owner.  Understanding the new rules, along with adequate Employment Practices Liability Insurance (EPLI), can help you limit your risk exposure.

Under the original ADA,  a disability was defined as:

  • A physical or mental impairment that substantially limits one or more major life activities
  • A record of such an impairment
  • Being regarded as having a disability

The latest ADA Amendment Act retains that definition but significantly expands how some of its terms are interpreted. Here are the key changes together with examples from the Equal Employment Opportunity Commission (EEOC).

  • A “major life activity” can now include the function of bodily organs like the heart, liver or kidneys, as well as such basic activities as working, concentrating or interacting with others.

EEOC Example:  Someone with a 20-pound lifting restriction that is not of short-term duration is substantially limited in lifting and need not also show that she is unable to perform activities of daily living that require lifting in order to be considered substantially limited in lifting.

  • The bar for applying “substantially limits” has been significantly lowered to the point of being a moderate limitation in the ability to perform a work task. No more blanket, one-size-fits-all situations policies, either.  You’re now required to assess that limitation on an individual basis.

EEOC Example: An individual whose normal cell growth is substantially limited due to cancer need not also show that he is substantially limited in working or any other major life activity.

  • A “record of” now has to with demonstrating that you the employer had knowledge of the person’s past substantially limiting impairment that led you to discriminate in your employment practices.
  • “Regarded as” now requires that an employee claiming discrimination only demonstrate that he or she was discriminated against because of a perceived impairment on your part, regardless of whether the impairment is a protected disability.

EEOC Example: An employer refuses to hire someone with a facial tic because she regards it as a disability, even if that employer does not know the facial tic is caused by Tourette’s Syndrome. Note that the “regarded as” provision is not triggered by an employer asking if an employee needs a reasonable accommodation.

If all this makes it seem like the term disability can be applied to just about anybody, you’re not far off the mark. In Part Two of this series, we’ll tell you about internal policies and EPLI insurance can protect you from costly ADA-related lawsuits.


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