Rehab Act Expanded

(This article appeared in the July/August 2009 issue of The American Postal Worker magazine.)

Sue Carney, Director Human Relations Dept.

The Rehabilitation Act, which prohibits workplace discrimination against employees with disabilities, has been significantly expanded with the recent passage of amendments to the Americans with Disabilities Act (ADA). The amendments set new standards for determining an individual’s disability status and shifts attention to employers meeting their obligations to make reasonable accommodations for disabled workers to be able to perform jobs, even if it means changing the manner in which a job is performed. Although the Equal Employment Opportunity Commission (EEOC) has not issued regulations implementing the new provisions, the USPS must still comply with the law, which became effective on Jan.1, 2009.

The ADA Amendments Act overturned long-standing case law that defined a “substantial limitation” as a disability that “prevents or severely restricts” performance of a major life activity. Concluding this standard was “too high,” Congress has made it far simpler for employees to qualify as individuals with disabilities. These employees will have greater standing before the EEOC to protest adverse action by their employers — such as those taken by the Postal Service in the National Reassessment Process.

Notable Changes

Under the ADAAA, the definition of major life activities has been expanded to include: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. Congress also includes “the operation of a major bodily function” as a major life activity, specifying the immune system, normal cell growth, and digestive, bowel, bladder, neurological, respiratory, circulatory, endocrine, and reproductive functions. The ADAAA specifies that neither list is meant to be exhaustive.

In another notable break from the past, the ADAAA forbids consideration of most mitigating measures in assessing whether a disability exists. This means employers cannot consider the effects of medication, hearing aids, cochlear implants, prosthetics, equipment, assistive technology, or “learned behavioral or adoptive neurological modifications.” The sole survivor of this sweeping edict is “ordinary eyeglasses” or contact lenses. Employers are still allowed to consider their effect on determining whether an impairment substantially limits a major life activity. On a practical level, this modification will extend protection to employees suffering from diabetes, hypertension, cancer, amblyopia and other conditions that can be managed through treatment and medication.

The ADAAA states that “an impairment which is episodic or in remission is a disability if it would substantially limit a major life activity when active.” Like the mitigating measures provision, this is intended to bring a larger group of individuals under the protection of the law. Under ADAAA, employees with seizure disorders, allergies, bipolar disorder, depression and other chronic conditions prone to flare-ups can seek accommodation in the workplace.

In a radical departure from prior law, individuals can now meet the requirements of “regarded as” [disabled] simply by showing that they were subjected to an adverse action prohibited by the Rehabilitation Act because of an actual or perceived impairment. Consequently, it will be far easier for individuals to assert claims.

To qualify, such claims cannot be based upon “transitory and minor” impairments. The Act defines a transitory impairment as one with an actual or expected duration of six months or less. In addition, no reasonable accommodation is required for an individual who is regarded as disabled, but who does not actually have a disability.

Requesting Reasonable Accommodation

Postal employees who believe they qualify as individuals with disability, especially those targeted by the USPS National Reassessment Process, may find it beneficial to make a request for reasonable accommodation under the Rehabilitation Act.

The USPS has instructed its managers, supervisors and Reasonable Accommodation Committees (RACs) to assess requests for reasonable accommodation in accordance with these new standards. If the Postal Service actually takes heed of the new standards — as it should — such requests could have a chilling effect on the NRP.