Flying to and from Nashville, I read the new ADA regulations from the EEOC, which was a real eye-opener. There's lots of meat to them, and here is one idea thread running throughout (cue the choir): "I once was sick but now am well, and thus I am covered" (apologies to the classic spiritual.) A record of a disability gets new life under the regs. If a person who once had a disability (recall that under the amended ADA proving a disability will be a breeze), then he is forever a protected person. Forever, even if he currently has no impairment or illness. And, in establishing coverage, the regs toss out the old idea that an employee must prove that an employer relied on the record of disability. This requirement is now part of causation, not coverage. One sop to employers: Receiving disability benefits is not a proxy for a record of a disability. Oh, and guess what? Coverage expands to include those whose impairments are in remission or episodic. They, too, get Mercedes coverage under the ADA amendments and are treated just like those who have ongoing disabilities. I can hear managers now, "Are you telling me that I can be sued by someone under the ADA who is A-O.K., in fine fettle, fit as a fiddle and not even disabled?" The answer,it seems, is "Yes."
Frankly, I can't see why it shouldn't be that way. Qualification for protection under T7 has been even lower than that for years. The bigger issues for employers (and employees) are (1) what constitutes "reasonable accommodation" and (2) what triggers that requirement.
Posted by: David Redden, Eden Prairie, MN | September 28, 2009 at 06:04 AM