Act Now Advisory: EEOC's Disabilities Guidance Updates Coincides with the APA's Manual of Mental Disorders Update and the AMA's Recognition of Obesity as a Disability - What Does This All Mean?

by Epstein Becker & Green

On May 15, 2013, the Equal Employment Opportunity Commission ("EEOC") updated its prior guidance regarding cancer, diabetes, epilepsy, and intellectual disabilities, so as to clarify employers' obligations under the Americans with Disabilities Act ("ADA"). According to the EEOC, this updated guidance ("Guidance") is meant to incorporate changes made to the definition of "disability" by the ADA Amendments Act of 2008, which, in part, broadened the definition of "disability" and clarified that individuals with these impairments are, indeed, "disabled." In a press release regarding the Guidance, the EEOC stated that an update was required because of the frequent questions posed by employers about how the ADA applies to individuals with these disabilities. Interestingly, the EEOC also removed a statement from the Guidance that previously denied that simple obesity (without any accompanying or underlying medical condition(s)) could be considered a disability.

The Guidance, which is in the form of a series of Q&As, contains information about an employer's ability to obtain, use, and disclose medical information from an employee or applicant throughout the hiring and employment processes. Also, the Guidance gives direction on what types of reasonable accommodations employers can provide individuals with these specific disabilities, as well as when it is appropriate to ask an individual if an accommodation is needed.

Specific Changes in the Guidance

Before this current update, the EEOC's most recent update to the guidance documents had occurred in early 2011. The EEOC's current changes attempt to create more useable documents for employers. Specific changes in the Guidance include:

  • more information regarding what an employer may ask or request from an applicant who has been offered a job but before the applicant has accepted the job;
  • a more detailed description of when an employer may ask an employee if performance problems are caused by a disability or some other medical condition; specifically, regarding workplace accommodations, the Guidance states that employers should ask the employee (or person acting on the employee's behalf) what he or she needs in order to do the job; and
  • new examples to help employers understand what is allowed and required by the ADA.

Other Notable Items

Among other notable items, the Guidance takes the position that an employer generally may not simply deny an open-ended leave request. While existing case law remains relatively consistent that open-ended leaves are not reasonable accommodations, the EEOC recommends that employers should communicate with an employee during an open-ended leave to secure updates. Even the EEOC, however, concedes that if leave has been extended multiple times, an employer may be permitted to reconsider whether further leave is an undue hardship.

Also, the Guidance suggests several possible accommodations for employees with diabetes or epilepsy. For the latter, the EEOC suggests that an employee may need a rubber mat in case of a fall. For diabetes, the EEOC suggests providing a stool if the employee cannot stand for extended periods of time.

In addition, the Guidance:

  • states that if an employer has only temporary light duty jobs, it need not create a permanent light duty job for an employee with a disability-related injury;
  • finds that an employer is not required to provide an accommodation to an employee with an occupational injury that is not a disability under the ADA; and
  • takes the position that even applicants and employees with diabetes may be qualified for positions operating commercial motor vehicles, even where the U.S. Department of Transportation ("DOT") requires minimum physical standards because of the DOT's waiver programs.

Updates from the APA and AMA

It appears that the EEOC is not the only entity thinking about the classification of mental and other disabilities. Interestingly, the Guidance coincided with the May 18, 2013, release of the American Psychiatric Association's ("APA's") Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition ("DSM-5"), which classifies and describes mental disorders. This is the first substantial update of the manual since 1994. The DSM-5 reorganizes the classification system and changes the names of some disorders to simplify diagnostics for practitioners. One of the major modifications in the DSM-5 is a change from the previously categorized disorder of "mental retardation" to the diagnosis of "intellectual developmental disorder."

The DSM-5 also changed the process through which mental disorders are assessed, keeping IQ test scores in the assessment process but removing them from the diagnostic criteria. This appears to be an effort by the APA to ensure that practitioners do not overemphasize IQ scores as a defining factor of an individual's overall ability. The release of DSM-5 is particularly relevant because, in some of its guidance documents relating to the ADA and, in particular, with respect to psychiatric disabilities, the EEOC previously cited to the DSM-4 (the latest edition at that time) as a relevant tool to be used in determining what qualifies as a mental impairment.

Finally, the American Medical Association ("AMA") has now officially recognized obesity as a disease, in an attempt, some say, to focus more attention on the condition. In an AMA press release, Dr. Patrice Harris, a member of the AMA's Board, noted, "[r]ecognizing obesity as a disease will help change the way the medical community tackles this complex issue that affects approximately one in three Americans." In any event, such a designation by the AMA will likely make it easier for an obese person to bring a viable disability discrimination claim based on obesity alone, or at least a claim that he or she was "regarded as" being disabled.

What Employers Should Do Now

In light of the Guidance regarding cancer, diabetes, epilepsy, and intellectual disabilities, as well as the AMA's designation of obesity as a disability, employers should consider taking the following actions:

  • Review the Guidance and become familiar with the EEOC's expansive views on employers' obligations under the ADA, as they will guide the EEOC's ADA enforcement efforts and may be given some deference by certain courts.
  • When an applicant or employee seeks an accommodation due to cancer, diabetes, epilepsy, or intellectual disabilities, or due to obesity, review the types of accommodations suggested in the Guidance, as this will likely indicate what the EEOC would expect an employer to offer to an applicant or employee with one of these disabilities.
  • Ensure that supervisors are trained to recognize accommodation requests even when the word "accommodation" is not specifically used. Remind supervisors to contact Human Resources for assistance in determining whether there is a reasonable accommodation available.
  • Remember that the duty to accommodate is a continuing one, and that, if an accommodation fails, an employer must consider whether any other reasonable accommodations may be available.
  • When a job really requires physical presence and regular attendance at the employer's facility, make sure that these needs are spelled out as essential functions in the job description.
  • Do not assume that conditions such as obesity are not disabilities—rather, assume that they may be, and take appropriate actions (such as considering possible reasonable accommodations) as a result.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Epstein Becker & Green | Attorney Advertising

Written by:

Epstein Becker & Green

Epstein Becker & Green on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.