The ADA Amendments Act of 2008 took effect January 1,
2009, and broadened the definition of a disability that makes a person eligible
for the protections of the ADA. Taking into account this new, broadened
definition of disability, on May 15, 2013, the EEOC issued four "Question
and Answer" documents about four common conditions that now clearly qualify
as disabilities: cancer, diabetes, epilepsy, and intellectual disability.
The question and answer documents, one for each condition, provide
straightforward answers to questions that employers might have about employing
and accommodating individuals with one or more of these conditions. The
documents use concrete examples to illustrate the answers provided. The issues
Each document notes, for example, that inquiring whether a
job applicant has had cancer, has diabetes, has epilepsy or uses prescription
drugs, or has been in special education classes, would be impermissible.
Employers can learn necessary information, however, by asking questions about
an applicant's ability to perform the job in question, such as whether the
applicant can lift a certain amount of weight, work rotating shifts, read,
drive, or place items in numerical order.
Each of the four documents offers noteworthy information specific to the
condition addressed. For example, the document regarding diabetes notes that
certain other federal laws may prohibit hiring a person who requires insulin
therapy, but that employers must take care to ensure that these other laws are
truly applicable, and not merely assume, without adequate investigation, that a
person with diabetes is ineligible for employment. The document addressing
cancer as a disability explains that the protections of the ADA apply to
individuals with a history of cancer as well as to those persons currently
living with cancer. The epilepsy document emphasizes that as is true when
accommodating individuals with any other disability, an employer can exclude a
person from a job for safety reasons only when that person's doing the job
poses a "direct threat" to himself or others. The harm in question
must be "serious and likely to occur, not remote and speculative,"
and the employer must consider whether any reasonable accommodation, including
temporary reassignment or leave, would reduce or eliminate the risk. Finally,
the document that discusses intellectual disabilities explains that when it is
apparent that an individual has an intellectual disability that impacts job
performance, the employer may be obligated to initiate a discussion about
reasonable accommodations even when the applicant or employee has not requested
an accommodation. Employers should also take care, when requesting medical
documentation regarding a person's intellectual disability, to request only
information related to providing accommodation and to warn health care
providers not to disclose genetic information in violation of the Genetic
Information Nondiscrimination Act.
The guidance documents are available here.
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by Barran Liebman attorneys.
are written by Barran
Liebman attorneys for their clients and friends. Alerts are not
intended as legal advice, but as employment law, labor law, and employee
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