Intellectual Disability under the ADAAA: A Widening Chasm of Problems?

Most of us in HR are still not up to speed on the new requirements of the Americans With Disabilities Act Amendments Act (ADAAA). Most of us are used to dealing with the idea of disability under the ADA since it had been around since 1990. In fact many HR folks have never experienced an HR world without the ADA. But the Amendments Act has broadened many, many definitions and has introduced a broader spectrum of disabilities we did not have to deal with in the past. These are the “intellectual disabilities” formerly termed “mental retardation” in the ADA. They are causing a widening chasm of problems into which many employers are dropping. Thus, since the ADAAA passed in May of 2011 there has been in increase in the number of disability discrimination claims filed with the EEOC.
According to the EEOC “The ADAAA and the final regulations define a disability using a three-pronged approach:
 a physical or mental impairment that substantially limits one or more major life activities (sometimes referred to in the regulations as an “actual disability”), or
a record of a physical or mental impairment that substantially limited a major life activity (“record of”), or
when a covered entity takes an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory and minor (“regarded as”).
Jon Gumbel, of Ogletree Deakins, in a presentation at SHRM Atlanta 2012, said that the “intellectual” disabilities would include:

    • Intellectual disabilities (such as inability to learn)
    • Bipolar disability
    • Post-traumatic stress disorder
    • Obsessive compulsive disorder
    • Schizophrenia
    • Major depressive disorder
    • A client of mine has ADD identified as a disability as well.

As you can see this list is a bit more meaningful than mental retardation. According to Jon Gumbel, these are all “per se” disabilities. This means there is no argument that someone so afflicted is to be considered disabled under the ADAAA.
However, in addition to this expanded list is the list of “major life activities” that must be considered under the ADAAA. This list has several that may be impacted by these intellectual disabilities. These include:

    • Learning
    • Reading
    • Concentrating
    • Thinking
    • Communicating
    • Interacting with others
    • Working

All but learning are new additions to the list of “major life activities.” Well when and where are employees NOT doing these things in your workplace? As my client with the employee who has ADD their disability causes problems with concentrating, thinking and interacting with others, especially the concentrating. The accommodation they have made has been to allow, on the suggestion of a therapist, to allow the employee to wear headphones to listen to music in order to improve concentration.
I am certain many of you can come up with examples of some of your employees who have similar issues. In the past you might have been tempted to say they were not suited for your job and you terminated them. Not now. Any of you have employees who are bipolar (what used to be called manic/depressive)? In days past you might have been tempted to let the “whacko” go, not today. Today the person has to be considered disabled without any regard to any medication they may be taking to control the intellectual disability.
As under the ADA, you have determine if someone is disabled, but the intellectual disabilities are a given. You have to determine if they can perform the essential functions of the job (so you have to know what those are). You have to have “an interactive (and documented) discussion with the employee on any accommodation. These discussions can include discussion with their doctors. You have to determine if the accommodation is reasonable. And then you have to determine if the individual poses any potential harm to themselves or others. For example do they become physically violent if not taking controlling medication? (Just so you know that was meant as an example and not a piece of legal advice.)
The changes with the ADAAA have been so significant that Attorney Jon Gumbel has said that for him the acronym ADAAA has become Assume Disability and Attempt to Accommodate.
For further information here is some Q & A from the EEOC
Questions and Answers on the Final Rule Implementing the ADA Amendments Act of 2008
Fact Sheet on the EEOC’s Final Regulations Implementing the ADAAA

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