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ADAAA The New Americans with Disabilities Act

Congress seeks to restore the act’s original intent.

By Carl Kleimann

adaaaIn 1990, congress passed the Americans with Disabilities Act (ADA) to protect employees and applicants with “substantial” disabilities that limited them from performing major life activities. The original act has been positive for disabled workers, but the Supreme Court limited its definition by narrowing what constitutes a disability. The high court held in Toyota v. Williams that, in order to qualify, a person must be “severely” restricted in his or her ability to perform major life activities. It also held that people with disabilities were not eligible under the ADA if their condition(s) could be mitigated by medication, assistive technology and equipment, or learned behavioral adaptations. Now, Congress has passed an amendment to the act that seeks to restore its original intent.

On January 1, 2009, the ADA Amendments Act went into effect after a brief injunction by the U.S. District Court for the Northern District of California. The amendments act overturns more than a decade of court decisions that restricted ADA eligibility for people with disabilities such as epilepsy, diabetes, intellectual and developmental disorders, muscular dystrophy and cancer, among others. The new law also clarifies that “major life activities” include working, communicating, concentrating, thinking, reading and other activities of central importance.

Let’s be clear, even though the rules have changed significantly, the new amendments act only applies to businesses engaged in an industry affecting commerce with 15 or more employees in the current or preceding calendar year. Still, its effect gives tens of millions more workers the opportunity for protection from the ADA. Because of the widening of the definition of a disability, the coverage has been broadened to the extent that employers should no longer expect ADA cases to be dismissed. Higher percentages will most likely go to trial where a jury will decide the case rather than a judge.

To comply with the new ADAAA, take the following steps:

Know the new guidelines of the ADA and have a formal ADA policy in your employee handbook with written procedures for handling accommodation requests. It’s the employee’s responsibility to request an accommodation and let their employer know that a performance problem is disability related. The ADA also requires an employer to make reasonable accommodations, unless this poses an “undue hardship,” a defense that is rarely applicable.

Check and review job descriptions to ensure the essential duties of each position are accurately reflected. The ADA does not require employers to hire unqualified applicants with disabilities nor does it require a business to retain employees who can no longer perform a job function because of a disability. The ADA does, however, prohibit employers from using unnecessary qualification standards to weed out disabled applicants.

The law is now focused on the actions of employees, so focus on performance and conduct rather than the characteristics of disabled claimants. This makes documentation of employment decisions crucial because, as an employer, you must demonstrate that employment decisions relate to job performance. Enforce polices in a uniform manner and never imply that performance issues are related to an employee’s disability.

An employee must still be able to perform essential job duties, so if the employee has no reasonable accommodation to safely do so, the employee is no longer protected by the ADA. Regular attendance at work is an essential job duty held by courts that have said that unpredictable or indefinite absences are not reasonable accommodations.

To learn more about the ADA Amendments Act, visit:

www.odysseyonesource.com/ADAAA

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