My view: It’s a bad time for ADA expansion
By Mark Zelek
Special to The Miami Herald
A politically popular new law will soon expand the number of workers who can seek federal disability protections under the ADA. This may seem like a bitter pill for companies already struggling through the unfolding credit crisis.
President Bush’s signing of the Americans with Disabilities Amendments Act Sept. 25 was the culmination of extensive negotiations between the business and disabled communities. The law’s almost unanimous support in Congress actually had been brewing years before any hint of our current economic crisis.
But by the time ADAA goes into effect Jan. 1, its broadened coverages will likely coincide with some unpleasant bottom-line business realities.
For example, companies with cash flow problems could find themselves worrying not about disability accommodations but layoffs. Yet, no matter how desperate the company’s situation and how quickly it needs to make a reduction in force, managers will need to take care not to target anyone meeting the newly relaxed definition of a disabled worker under the ADAA.
EQUAL PROTECTION
And, in fact, starting Jan. 1, employers will need to be careful how they carry out any adverse employment action regarding anyone who may claim a disability.
The intent of the ADAA clearly is to raise the protection granted to the disabled to the level provided by other laws prohibiting workplace discrimination on the basis of race, religion, gender and nationality.
Under the new law, first and foremost, workers who seek disability accommodations from their employer will find it much easier to qualify. Whereas in the past, workers might not qualify if their symptoms could be managed with medication or prosthetics, that will no longer be the case.
Furthermore, a disability could be defined as anything that substantially limits a major bodily function. Included on this list are: ”normal cell growth and the immune system, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrinal, and reproductive functions.” Such language seems a prescription for many chronic but episodic diseases like diabetes, epilepsy, depression and cancer that, at times, did not qualify as disabilities in the past.
While employees will remain responsible for demonstrating the existence of a ”disability,” the ADAA makes it clear that this burden is not intended to be difficult to meet.
HARDER TO DEFEND
As a result, it will be more problematic for employers to manage day-to-day workplace situations and to defend against ADA lawsuits by challenging a worker’s claim of disability. The focus in lawsuits brought under the ADA will shift from an extensive analysis of just how disabled the employee is to how well the employer complied with its obligations to accommodate.
A careful review and updating of company ADA policies and updated ADA training for all human-resource and employee-health personnel by Jan. 1 will help companies step forward on the right foot.
Mark Zelek is an employment attorney and managing partner of the Miami office of international law firm Morgan, Lewis & Bockius LLP.