WASHINGTON —Foodservice operators and other employers will need to rethink policies and practices related to the Americans with Disabilities Act under proposed regulations that are expected to dramatically broaden the definition of what it means to be “disabled.”
At the same time, operators could find themselves the target of an increasing number of disability-related lawsuits resulting from the new rules, experts say. —Foodservice operators and other employers will need to rethink policies and practices related to the Americans with Disabilities Act under proposed regulations that are expected to dramatically broaden the definition of what it means to be “disabled.”
The U.S. Equal Employment Opportunity Commission in September published proposed regulations resulting from amendments to the ADA law that went into effect Jan. 1, 2009. —Foodservice operators and other employers will need to rethink policies and practices related to the Americans with Disabilities Act under proposed regulations that are expected to dramatically broaden the definition of what it means to be “disabled.”
The law was revised because federal lawmakers were unhappy with interpretations of the original 1990 rules by the U.S. Supreme Court. Over the years the court had made it difficult for some plaintiffs not considered disabled—including individuals with epilepsy, diabetes, multiple sclerosis, intellectual disabilities, major depression and bi-polar disorder—to bring a claim to trial. —Foodservice operators and other employers will need to rethink policies and practices related to the Americans with Disabilities Act under proposed regulations that are expected to dramatically broaden the definition of what it means to be “disabled.”
Under the new ADA Amendments Act, or ADAAA, the basic definition of “disability” as an impairment that substantially limits one or more major life activity remains the same. However, the EEOC has been asked to revise what its regulations define as “substantially limiting,” as well as to expand what could be considered a “major life activity.” —Foodservice operators and other employers will need to rethink policies and practices related to the Americans with Disabilities Act under proposed regulations that are expected to dramatically broaden the definition of what it means to be “disabled.”
Those changes are expected to significantly enlarge the pool of individuals who qualify as disabled and who are entitled to ADA protections. —Foodservice operators and other employers will need to rethink policies and practices related to the Americans with Disabilities Act under proposed regulations that are expected to dramatically broaden the definition of what it means to be “disabled.”
“It’s going to be a very different ADA world,” said Myra Creighton, an employment law attorney with Fisher & Phillips LLP in Atlanta. —Foodservice operators and other employers will need to rethink policies and practices related to the Americans with Disabilities Act under proposed regulations that are expected to dramatically broaden the definition of what it means to be “disabled.”
Under the proposed rules, for example, a disability could be any impairment that prevents someone from caring for oneself, speaking, learning, reading, concentrating, sitting, reaching or interacting with others—as well as the more traditional concept of impairment, such as walking, seeing or hearing. —Foodservice operators and other employers will need to rethink policies and practices related to the Americans with Disabilities Act under proposed regulations that are expected to dramatically broaden the definition of what it means to be “disabled.”
Certain bodily functions also are considered among major life activities, such as normal cell growth or digestive, circulatory, brain or reproductive functions. —Foodservice operators and other employers will need to rethink policies and practices related to the Americans with Disabilities Act under proposed regulations that are expected to dramatically broaden the definition of what it means to be “disabled.”
As a result, the EEOC identifies examples of conditions that consistently will meet the definition of disability: deafness, blindness, intellectual disability or mental retardation, partially or completely missing limbs, mobility impairment such as use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, muscular dystrophy, major depression, bi-polar disorder, post-traumatic stress disorder, obsessive-compulsive disorder and schizophrenia. —Foodservice operators and other employers will need to rethink policies and practices related to the Americans with Disabilities Act under proposed regulations that are expected to dramatically broaden the definition of what it means to be “disabled.”
The rules also offer examples of impairments that might be limiting for some but not others, including asthma, back and leg impairments and learning disabilities. —Foodservice operators and other employers will need to rethink policies and practices related to the Americans with Disabilities Act under proposed regulations that are expected to dramatically broaden the definition of what it means to be “disabled.”
In addition, the new rules include a non-exhaustive list of potentially mitigating measures—or things that might reduce or eliminate the impact of an impairment, like a hearing aid. —Foodservice operators and other employers will need to rethink policies and practices related to the Americans with Disabilities Act under proposed regulations that are expected to dramatically broaden the definition of what it means to be “disabled.”
Under the ADAAA, the use of such mitigating measure should be ignored in determining who is disabled. In other words, employers must consider how a person would function without the hearing aid in determining a disability. —Foodservice operators and other employers will need to rethink policies and practices related to the Americans with Disabilities Act under proposed regulations that are expected to dramatically broaden the definition of what it means to be “disabled.”
The use of corrective eyeglass or contact lenses don’t count as a mitigating measure, however, so someone who is simply nearsighted or farsighted cannot claim a disability. —Foodservice operators and other employers will need to rethink policies and practices related to the Americans with Disabilities Act under proposed regulations that are expected to dramatically broaden the definition of what it means to be “disabled.”
There are other changes as well. —Foodservice operators and other employers will need to rethink policies and practices related to the Americans with Disabilities Act under proposed regulations that are expected to dramatically broaden the definition of what it means to be “disabled.”
An employer, for example, could face charges of discrimination if he takes a job action against someone who he perceives to be disabled, even if the individual is not. —Foodservice operators and other employers will need to rethink policies and practices related to the Americans with Disabilities Act under proposed regulations that are expected to dramatically broaden the definition of what it means to be “disabled.”
Jonathan Mook, an ADA specialist with DiMuroGinsberg in Alexandria, Va., offered the example of a restaurant owner who declines to hire someone because he saw sores on the job candidate’s hands and thought it might be an indication of AIDS. It wouldn’t matter that the job candidate didn’t have AIDS or wasn’t disabled; the employer still could be liable because he regarded the potential employee as disabled. —Foodservice operators and other employers will need to rethink policies and practices related to the Americans with Disabilities Act under proposed regulations that are expected to dramatically broaden the definition of what it means to be “disabled.”
The EEOC is taking public comment on the proposed rules until Nov. 23, but attorneys across the country say that they don’t expect the proposal to change significantly before being published. —Foodservice operators and other employers will need to rethink policies and practices related to the Americans with Disabilities Act under proposed regulations that are expected to dramatically broaden the definition of what it means to be “disabled.”
In a way, the new federal law is now more aligned with discrimination laws that have long been in place in California, said Mark Spring, an attorney with Carlton, DiSante and Freudenberger in Sacramento. —Foodservice operators and other employers will need to rethink policies and practices related to the Americans with Disabilities Act under proposed regulations that are expected to dramatically broaden the definition of what it means to be “disabled.”
“Employers here have been dealing with this for many years,” he said. —Foodservice operators and other employers will need to rethink policies and practices related to the Americans with Disabilities Act under proposed regulations that are expected to dramatically broaden the definition of what it means to be “disabled.”
The biggest mistake employers outside of California are likely to make is not considering a reasonable accommodation for employees that claim a disability, said Spring. —Foodservice operators and other employers will need to rethink policies and practices related to the Americans with Disabilities Act under proposed regulations that are expected to dramatically broaden the definition of what it means to be “disabled.”
In the past, many of those employees might not have been considered disabled and employers might have been reluctant to take action to accommodate their needs. Under the new interpretation, however, those employers should err on the side of disability and accommodate their work needs as much as is reasonably possible. —Foodservice operators and other employers will need to rethink policies and practices related to the Americans with Disabilities Act under proposed regulations that are expected to dramatically broaden the definition of what it means to be “disabled.”
“You need to train your managers and HR folks to put their accommodation thinking caps on,” he said. “They’ll have to understand that they’ll have to accommodate more people because more people will qualify as disabled.” —Foodservice operators and other employers will need to rethink policies and practices related to the Americans with Disabilities Act under proposed regulations that are expected to dramatically broaden the definition of what it means to be “disabled.”
One area in which the definition of disability might come into play, he added, is following the exhaustion of Family Medical Leave. It’s common for employers to have a policy that states employees could be let go if they refuse to return to work after exhausting their protected leave—unless they have a disability. —Foodservice operators and other employers will need to rethink policies and practices related to the Americans with Disabilities Act under proposed regulations that are expected to dramatically broaden the definition of what it means to be “disabled.”
“People who can’t come back after 12 weeks will be a prime pool of candidates that will claim disability,” Spring said. —Foodservice operators and other employers will need to rethink policies and practices related to the Americans with Disabilities Act under proposed regulations that are expected to dramatically broaden the definition of what it means to be “disabled.”
Creighton warned that employers should be careful about how they comment on any employee’s condition, particularly in e-mails, which can be brought into court as evidence. —Foodservice operators and other employers will need to rethink policies and practices related to the Americans with Disabilities Act under proposed regulations that are expected to dramatically broaden the definition of what it means to be “disabled.”
Referring to an employee as an alcoholic, for example, or saying that it might be dangerous for someone to return to work after suffering a heart attack could get an employer in trouble, Creighton said. —Foodservice operators and other employers will need to rethink policies and practices related to the Americans with Disabilities Act under proposed regulations that are expected to dramatically broaden the definition of what it means to be “disabled.”
“I tell people, just pick up the phone,” she said. —Foodservice operators and other employers will need to rethink policies and practices related to the Americans with Disabilities Act under proposed regulations that are expected to dramatically broaden the definition of what it means to be “disabled.”
One goal of the regulations is to allow the courts to focus more directly on whether discrimination occurred, not who qualifies as disabled. —Foodservice operators and other employers will need to rethink policies and practices related to the Americans with Disabilities Act under proposed regulations that are expected to dramatically broaden the definition of what it means to be “disabled.”
In the past, Creighton said, many discrimination lawsuits never made it to the courts because the plaintiff couldn’t meet the definition of a disability. —Foodservice operators and other employers will need to rethink policies and practices related to the Americans with Disabilities Act under proposed regulations that are expected to dramatically broaden the definition of what it means to be “disabled.”
“A lot of attorneys were saying they wouldn’t even take ADA cases anymore because they were just too hard to win,” she said —Foodservice operators and other employers will need to rethink policies and practices related to the Americans with Disabilities Act under proposed regulations that are expected to dramatically broaden the definition of what it means to be “disabled.”
Under the new rules, more lawsuits are expected, and more will make it to trial, but not only because more people will qualify for ADA protections. —Foodservice operators and other employers will need to rethink policies and practices related to the Americans with Disabilities Act under proposed regulations that are expected to dramatically broaden the definition of what it means to be “disabled.”
With more people suffering from adverse job actions resulting from the weakened economic climate—such as layoffs, pay cuts or denied promotion—more plaintiffs will be claiming discrimination, Spring said. —Foodservice operators and other employers will need to rethink policies and practices related to the Americans with Disabilities Act under proposed regulations that are expected to dramatically broaden the definition of what it means to be “disabled.”
Even after the EEOC’s proposed rules are settled, many details about how the regulations play out will be determined by the courts, Mook added. Because the amendments to the law nullify how courts ruled previously, he said, “It’s like starting from square one.” —Foodservice operators and other employers will need to rethink policies and practices related to the Americans with Disabilities Act under proposed regulations that are expected to dramatically broaden the definition of what it means to be “disabled.”
The good news is that the regulations clarify more specifically what a disability is and employers can use the new rules to improve their policies and practices. —Foodservice operators and other employers will need to rethink policies and practices related to the Americans with Disabilities Act under proposed regulations that are expected to dramatically broaden the definition of what it means to be “disabled.”
The days of being complacent about ADA issues are over, Mook said. —Foodservice operators and other employers will need to rethink policies and practices related to the Americans with Disabilities Act under proposed regulations that are expected to dramatically broaden the definition of what it means to be “disabled.”
“Employers need to make sure they are dotting their i’s and crossing their t’s when they’re taking any job action because it’s going to be a lot easier to challenge it,” he said. “It’s a new world.”— [email protected] —Foodservice operators and other employers will need to rethink policies and practices related to the Americans with Disabilities Act under proposed regulations that are expected to dramatically broaden the definition of what it means to be “disabled.”
