Nearly 34 million Americans diagnosed with cancer, diabetes or epilepsy, and over two million suffering from an intellectual disability are now protected from discrimination under the Americans with Disabilities Act (ADA). Changes to the definition of a disability made by the 2008 ADA Amendments Act (ADAAA) were reflected in four revised publications issued by the Equal Employment Opportunity Commission (EEOC) in May 2013. Given the limitations these diseases place on major life activities, the EEOC considers applicants and employees with these conditions to fall within the definition of a "disability" under the ADA.
The EEOC publications are in question-and-answer format and address topics including —
The types of reasonable accommodations that may be necessary for people with these conditions;
Handling safety concerns about applicants and employees with the condition; and
How employers can prevent harassment of people with these conditions.
The publications also address when an employer may inquire about an applicant or employee's condition and how it should treat voluntary disclosures. Prior to employment, employers may not ask applicants whether they have or have ever had cancer, epilepsy, diabetes or an intellectual disability. After extending a job offer, an employer may ask health questions and require a physical examination — provided an exam is required for all applicants for the relevant job or job category — and may ask about these conditions as part of a voluntary wellness program. Employers may not disclose to others the reason for any accommodation made for an employee.
Employers should refer to the EEOC guidance to ensure their HR policies take these four medical conditions into consideration when faced with a request for a reasonable accommodation. Employers who fail to comply with the ADA can be liable for significant punitive damages and administrative penalties.