Privacy and Data Security Archives - Page 14 of 22

Final EEOC Regulations for the ADA Amendments Act, Published on March 25, 2011

The Equal Employment Opportunity Commission (EEOC) recently released the final regulations intended to simplify implementation of the Americans with Disabilities Act Amendments Act (ADAAA). In the ADAAA, which went into effect on January 1, 2009, Congress directed the EEOC to revise its Americans with Disabilities Act (ADA) regulations to conform them to changes made by the ADAAA. Though the ADAAA and these final regulations do not change the definition of a covered “disability” under the ADA—a physical or mental impairment that substantially limits one or more major life activities—the ADAAA and the final regulations made significant changes to how those terms are to be interpreted. In particular, the regulations set forth a list of principles to guide the determination of whether a person has a disability, and provide that the definition should be construed as broadly as possible under the law. The most significant changes to the ADA are as follows:

The principles outlined in the final regulations provide that an impairment is a disability if it “substantially limits” the ability of an individual to perform a major life activity as compared to most people in the general population.
“Mitigating measures” such as medication and assistive devices must not be considered when determining whether someone has a covered disability – so, if an employee’s condition would qualify without medication or assistive devices, then person should be considered to have a covered disability (interestingly, this does not include the ordinary use of contact lenses or eyeglasses).
Physical and mental impairments that are episodic (such as epilepsy) or in remission (like cancer) are disabilities if they could be “substantially limiting” when active.
The final regulations explain that the term “major life activities” includes “major bodily functions,” such as the immune system, normal cell growth, and brain and endocrine functions.

The final regulations state that the question of whether an individual meets the definition of disability should not demand “extensive analysis,” and that the focus in cases brought under the ADA should be whether covered entities have complied with their non-discrimination and reasonable accommodation obligations and whether discrimination has occurred, not whether the individual meets the definition of a covered disability. The intended 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, though whether that is true in practice, and how the EEOC chooses to enforce the changes, remains to be seen.

Hiring in Massachusetts? Criminal History Questions Must Be Removed from Job Applications by November 4, 2010

by Heather Egan Sussman and Sabrina Dunlap

The Massachusetts Governor recently signed into law an act reforming the Commonwealth’s criminal offender record information system. Under this new law, most Massachusetts employers will now be prohibited from asking about criminal history on an initial written job application. Massachusetts is among a growing number of states to "ban the box" on job applications.

The most significant provisions directly affecting Massachusetts employers are as follows:

The ban-the-box provision is effective November 4, 2010. As of that date, employers are prohibited from asking job applicants about criminal history on the initial written job application with only limited exceptions.
The law creates new “notice” requirements for employers effective February 6, 2012. Under these new requirements, an employer in possession of criminal record information about an applicant must provide the information to the applicant prior to questioning the applicant about it. In addition, similar to the requirements of the federal Fair Credit Reporting Act, if an employer decides not to hire an applicant in whole or in part because of the applicant’s criminal record, the employer must provide the applicant with a copy of the record.
The “policy” provision of the new law is also effective February 6, 2012. This provision requires employers that conduct five or more criminal background investigations in a year to implement and maintain a written criminal record information policy.
The law imposes penalties (including imprisonment for up to one year or a fine of up to $5,000 for an individual, $50,000 for an entity) for those who request or require a person to provide a copy of his or her criminal record except in situations authorized by law. In addition, the law prohibits harassment of the subject of a criminal record, punishable by imprisonment of up to one year, or a fine of not more than $5,000.

Employers that plan to hire in Massachusetts should reexamine application forms and employment policies to ensure compliance with the new law.

For more information and analysis on the new law, click here.