Oct 03, 2008 - 8:49 pm
After attempts to amend Title VII of the Civil Rights Act to include cancer survivors (H.R. 1294/H.R. 1546) failed in the late 1980s, an expansion of the Americans with Disabilities Act (S. 3406) was signed into law this September to afford employment protection for cancer patients. What follows is the most clear and concise explanation of "our" new protection against employment discrimination I could find on the web:
"ADA Expanded, Resulting in Significant Increase in the Number of Employees Who Are Considered Disabled
On September 25, 2008, President Bush signed into law the ADA Amendments Act of 2008 (the Act), which significantly expands the Americans with Disabilities Act (ADA). Halleland Lewis Nilan & Johnson attorneys Joe Schmitt and Mark Girouard warn that the Act, which takes effect on January 1, 2009, will result in a profound shift in the landscape of disability accommodation and discrimination claims in the workplace.
Most significantly, the Act requires the determination of whether an employee or job applicant's impairment is a disability to be made without regard to any mitigating measures. As a result, an employee with a condition that is controlled by medication - such as diabetes, epilepsy, or cancer - is now considered disabled, regardless of the medication's mitigating effects. Similarly, disability determinations must now be made without regard to devices such as prosthetics, hearing aids, or cochlear implants. A related section of the Act provides that impairments that are episodic or in remission are disabilities, so long as they would substantially limit a major life activity if they were active.
The Act also lowers the bar for employees to prove that they were discriminated against for being "regarded as" having a disability. At the same time, the Act clarifies that "regarded as" claims cannot be based on transitory and minor impairments, where the impairment is expected to last less than six months. In addition employers are not required to provide accommodations to individuals who are regarded as disabled, an issue over which the federal courts were previously divided.
With the Act going into effect on January 1, 2009, employers should immediately review their existing handbooks, policies and procedures - including those related to hiring, medical testing, accommodation, leave, and termination - to make sure that any definitions are consistent with the Act. Employers who do not have a formalized process in place for addressing reasonable accommodation requests should consider implementing one. Employers should also consider training hiring managers, supervisors, and human resources personnel about reasonable accommodations and the new definition of disability, as many additional employees and job applicants are now likely to request accommodation.
For more information contact Joe Schmitt at firstname.lastname@example.org or 612-204-4140, or Mark Girouard at email@example.com or 612-204-4108."