September 19, 2008
Did you know...?
Amended ADA Law Will Expand Definition of Disabled
The U.S. Senate on Thursday (9/11/08) voted unanimously to
pass a proposed amendment to the Americans with Disabilities Act (ADA) that
will drastically increase the number of employees who will be considered
“disabled” under the federal law.
President George W. Bush is expected to sign the ADA Amendments Act into law in
the coming weeks.
The proposed legislation will greatly impact employees and employers in every
state except California, which already follows a state law that has a broader
definition of what constitutes a disability. Most disability claims in California are filed with the Fair Employment and Housing Act.
Under the amendment, individuals who have any type of physical or mental health
condition that they control with medication will most likely be covered by the
federal ADA law and will qualify for special workplace accommodations. Currently,
individuals outside of California are usually covered under the act only if
their medical condition is visually apparent – such as missing a limb or being
blind or paralyzed – or if their medical condition is debilitating and cannot
be adequately controlled with medication.
Under the new law, employees who have any type of mental or physical condition
that is controlled with medication – whether the treatment is successful or not
– will likely be covered under the ADA. Such conditions as insulin-dependent
diabetes, heart conditions and even severe depression and anxiety could qualify
someone for coverage under the proposed federal ADA law.
Sens. Tom Harkin, D-Iowa, and Orrin Hatch, R-Utah, sponsored the bill, which
passed the House on June 25. More than five dozen senators, including Sen.
Hillary Clinton, D-New York, and presidential nominees Sen. Barack Obama,
D-Illinois, and Sen. John McCain, R-Arizona, are co-sponsors.
When the amendment is signed into law there will be a drastic change in the way
employers can defend ADA lawsuits. Previously, it was up to an employee to
prove he or she had a disability. Under the new law, the employer bears the
burden of proving they did not discriminate against an employee because of a
disability, and they must prove they offered the employee a “reasonable
accommodation” in the workplace.
The amendment is viewed as a compromise between the existing ADA law, which
wasn't broad enough, and the ADA Restoration Act, which was proposed in 2007
and never made it out of committee. The Restoration Act would have allowed
almost all employees with a physical or mental impairment to be covered under
the ADA.
After the law's passage, more employers will grapple with
providing “reasonable accommodations” to help their employees perform their
jobs, as is required of employers who have disabled workers. Those
accommodations could entail anything from changing the work hours of an
employee who has trouble waking up in the morning as a result of his medication
to providing special telephone equipment to a hearing-impaired employee.
Employers are expected to provide such accommodations, within reason. If such
an accommodation would cause undue hardship – such as allowing a receptionist
to arrive to work at 10 a.m. each morning even though the phone lines open at 8
a.m. - the business will likely be able to prove it attempted to provide reasonable
accommodations to the best of its ability. The business, however, would be
required to look for other openings in the company for the employee in order to
satisfy the “reasonable accommodations” requirement.
Predictions are that there will be more litigation against employers for not
providing reasonable accommodations to their disabled employees. In addition,
many more people with work-related injuries will be covered under the new ADA law. Employers now win more than 90% of ADA cases. That number will decrease
drastically after adoption of the law.
For more information about the ADA Amendments Act, visit: http://www.govtrack.us/congress/bill.xpd?bill=h110-3195.
*Please feel free to forward this information to any member of management in your company who would benefit from it.*
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