What should employers do if a job applicant voluntarily discloses a disability during an interview?
In most cases, employers cannot ask disability-related questions until after an applicant receives a conditional job offer, according to McDermott’s Laurie A. Baddon in this Society for Human Resource Management article. Once the employer makes a conditional offer, the employer can ask disability-related questions and require medical examinations for any applicant. Employers can ask applicants about their ability to perform essential job duties with or without accommodation.
The Equal Employment Opportunity Commission (EEOC) recently released the final regulations intended to simplify implementation of the Americans with Disabilities Act Amendments Act (ADAAA). In the ADAAA, which went into effect on January 1, 2009, Congress directed the EEOC to revise its Americans with Disabilities Act (ADA) regulations to conform them to changes made by the ADAAA. Though the ADAAA and these final regulations do not change the definition of a covered “disability” under the ADA—a physical or mental impairment that substantially limits one or more major life activities—the ADAAA and the final regulations made significant changes to how those terms are to be interpreted. In particular, the regulations set forth a list of principles to guide the determination of whether a person has a disability, and provide that the definition should be construed as broadly as possible under the law. The most significant changes to the ADA are as follows:
The principles outlined in the final regulations provide that an impairment is a disability if it “substantially limits” the ability of an individual to perform a major life activity as compared to most people in the general population.
“Mitigating measures” such as medication and assistive devices must not be considered when determining whether someone has a covered disability – so, if an employee’s condition would qualify without medication or assistive devices, then person should be considered to have a covered disability (interestingly, this does not include the ordinary use of contact lenses or eyeglasses).
Physical and mental impairments that are episodic (such as epilepsy) or in remission (like cancer) are disabilities if they could be “substantially limiting” when active.
The final regulations explain that the term “major life activities” includes “major bodily functions,” such as the immune system, normal cell growth, and brain and endocrine functions.
The final regulations state that the question of whether an individual meets the definition of disability should not demand “extensive analysis,” and that the focus in cases brought under the ADA should be whether covered entities have complied with their non-discrimination and reasonable accommodation obligations and whether discrimination has occurred, not whether the individual meets the definition of a covered disability. The intended effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA, though whether that is true in practice, and how the EEOC chooses to enforce the changes, remains to be seen.
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