ADA & Disabilities

ADA Complexity Leading to Increased Lawsuits

As the Americans with Disabilities Act enters its 16th year, compliance is more than ever the order of the day. But you need a good guide to do it right.

A recent Advisor article talked about the upsurge in legal action over violations by businesses of the provisions of the Americans with Disabilities Act (ADA). The article noted that, while some of the litigation has been brought by so-called “professional plaintiffs” seeking attorney fees and other financial awards, a great deal also derives from legitimate violation of the law.

One reason this type of activity is increasing is both the vastness and the vagueness of ADA.

The vastness comes from the statute trying to cover a huge amount of ground, ranging from physical accessibility for the disabled to telecommunications to employment discrimination. The vagueness comes from legislators trying to write a law that fits all situations and, in doing so, omitting specifics for any one.

As a result, what’s considered a disability in one situation isn’t in another. And while employers are ordered to provide “reasonable accommodation” for the disabled, they’re never told the exact measures to take. No surprise that, with so much uncertainty, litigation has become the order of the day.

Publishers have responded with a wide variety of ADA guidance for business, ranging from pamphlets to extensive guidebooks. Our own reference is the Complete Guide to ADA Compliance. It’s a comprehensive reference of nearly 400 pages, designed to cover “all the bases,” and do it in plain English.

We asked our editors what you should look for in a publication designed to help you understand and comply with ADA. Here are the critical factors:

–Definitions by example. Terms like “disability,” “reasonable accommodation,” and “undue hardship” need to be defined in a way employers can understand them. The best way to do it is by example. The Complete Guide to ADA Compliance makes extensive use of examples to support its definitions.

–Procedural prohibitions. There’s a fine line between what employers can and cannot ask in dealing with the disabled in situations such as hiring. You need guidance on how not to cross that line.

–Policy prohibitions. Chances are that your employment policies were not written with the ADA in mind, especially if you’ve been in business a decade or more. Anything relating to physical exams or attendance, for example, should be reviewed.

–Help with job descriptions, which have been a special target. Under ADA, all job descriptions must separate the essential tasks of the job from those less critical. The concept is that if a disabled person can do the essentials, not being able to do some of the rest should not hinder hiring.

–Training guidelines. At day’s end, ADA compliance comes down to your people and how well they’ve been trained on ADA issues. Special safety training may be required, both for disabled persons and their supervisors. And sensitivity training can reduce or eliminate interpersonal or harassment problems.

–Leave guidance. Several laws, the Family Medical Leave Act (FMLA) and Workers’ Compensation among them, control workplace leave. Your reference should fully explain how these laws interact with ADA, and which takes precedence in common situations. BLR’s Complete Guide to ADA Compliance devotes an entire section to just this interaction.

–State interactions coverage. The BLR book has a chart comparing the disability laws of all 50 states to federal ADA, analyzing which takes precedence.

–Documentation materials. You need to know how to document all aspects of your ADA compliance. The BLR reference gives you the forms and checklists to do it.

Whichever reference you choose for ADA compliance (and naturally we recommend ours), take the time to understand it thoroughly. This is a law with lofty goals and a circuitous path to reach them. You’re going to need a good guide to get you through unscathed.

For more information on The Complete Guide to ADA Compliance, or to order at no risk, click here.