Employment Law and Your HOA

New Federal Regulations Covering Disabled Employees Will Affect Greater Numbers of Associations

By: Mark A. Trank, Esq.

On March 25, 2011, the U.S. Equal Employment Opportunity Commission (EEOC) issued its final revised Americans with Disabilities Act (ADA) regulations in order to implement the ADA Amendments Act of 2008. These new regulations will affect virtually all associations that employ 15 or more individuals, since they are covered under the ADA.

The ADA Amendments Act made important changes to the definition of the term “disability” by rejecting the holdings in several U.S. Supreme Court decisions. The 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.

Following the ADAAA, the regulations keep the ADA’s definition of the term “disability” as a physical or mental impairment that substantially limits one or more major life activities; a record (or past history) of such an impairment; or being regarded as having a disability.

However, under the new regulations, the term “substantially limits” requires a lower degree of functional limitation than the standard previously applied by the courts. An impairment does not need to prevent or severely or significantly restrict a major life activity to be considered “substantially limiting.” This means that, while not every impairment will constitute a disability under ADA, it will be more difficult for an employer to argue successfully that an individual is not disabled.

The new EEOC regulations are lengthy and complex. However, it is clear that associations who have 15 or more employees will have to face the new reality that virtually any worker who claims that he or she is disabled is likely to be deemed disabled. That means that the association will have to provide a “reasonable accommodation” to the employee in order to permit that individual to perform the essential functions of the job. Failure to do so may subject the association to enforcement action by the EEOC, as well as significant damages.

On March 25, 2011, the U.S. Equal Employment Opportunity Commission (EEOC) issued its final revised Americans with Disabilities Act (ADA) regulations in order to implement the ADA Amendments Act of 2008. These new regulations will affect virtually all associations that employ 15 or more individuals, since they are covered under the ADA.