The ADA Gets a Major Facelift

2009 is going to be a bumpy ride for employers.  Aside from the economic turmoil everyone’s facing, there’s a long laundry list of employment laws that are likely to be enacted by Congress, and signed into law.

And what’s already confirmed on the horizon? Some sweeping changes to the Americans with Disabilities Act (ADA).  On September 25, 2008, President Bush signed into law the ADA Amendments Act of 2008 (ADAAA), which will amend the ADA and directly overturn several landmark U.S. Supreme Court decisions.   

What’s motivated the changes?  In a nutshell, Congress felt that the courts had narrowed the scope of the ADA too severely.  The ADAAA sends a clear message that the concept of “disability” is to be more broadly interpreted.

The bottom line impact of these amendments for employers?  Far more people will fall within the definition of “disability” under the ADA.  Specifically, the ADAAA will increase coverage and strengthen employee protections under the ADA by:

• Rejecting the strict interpretation of the ADA that defines disability to be an impairment that prevents or severely restricts an individual from doing activities that are of central importance to a person’s daily life;

• Prohibiting the consideration of almost all measures that reduce or mitigate the impact of an impairment in the determination of whether a person is disabled; and

• Allowing people who are discriminated against on the basis of a perceived disability to pursue a claim under the ADA, regardless of whether the perceived impairment actually limits or is perceived to limit a major life activity.

For a more in-depth look at the ADAAA provisions, check out Littler’s summary.


Are Your Managers Ready for The Changes?
 
All of this made me think. Most employers and managers know very little about the ADA to begin with.  The accommodation process is highly technical, and it involves a lot of confidential medical information.  In fact most managers don’t know the difference between the FMLA, ADA, and Worker's Compensation.  It all morphs into a fuzzy gray area of “medical issues.”

For years, being a little confused got you by. The risk of losing an ADA lawsuit was low, and plaintiff’s lawyers shied away from these cases. They were too hard to win based on the narrow interpretation of “disability” previously supported by the courts.

But my guess is that the ADAAA will light a little fire under employees and lawyers who want to test the boundaries of the new language.  And what managers and HR say and do will be closely watched and scrutinized.

So now’s the time to make sure that your folks understand what to do when an employee asks for a reasonable accommodation. If you’re like most employers, you probably need to do some ADA training.  And as you think about the details of your education program, make sure that you consider the following:

• Is the new expanded definition of “disability” clear - especially the “regarded as” component?

• Do your managers know how to recognize situations when an employee is not directly requesting an accommodation, but discloses information that requires opening up the topic for discussion?  

• Do your managers know how to respond if an employee requests to have a prior accommodation decision re-evaluated?  

You don't need to make your managers legal experts or medical professionals - you just need to make sure they know how to spot key accommodation issues, and follow your basic rules and policies when it comes to dealing with employee medical issues.


Let Us Help

Training in this area doesn’t have to be difficult, or time consuming.  ELT’s new Integrity Suite program covers critical employment law topics in concise training vignettes, and gives managers practical advice and tips about the recent ADA changes.  In fact, you can view a demo of ADA training directly from our web site.    

Designed as an interactive news program, your managers will learn what’s most important, and how to avoid mistakes. And whether you just want to train on the ADA, or cover a broader array of employment law topics, is up to you. With more than 40 subjects to choose from, you can create the course that fits your needs. Each training vignette is just about 15 minutes in length, and fully customizable.


The Bottom Line

With the ADAAA effective January 1, 2009, expect more lawsuits to be filed. The bottom line is that the law makes it easier for applicants and employees to make claims of disability discrimination. Defense of these suits will be more difficult, as the more expansive construction of the meaning of disabled will limit some frequently used defenses.

So stay ahead of the curve, and invest in some prevention and compliance efforts.