By BLR Founder and CEO Bob Brady
BLR CEO Bob Brady says the new ADA amendments are likely to create some HR headaches, at least in the short term, but that the legislation shows that our system of government works as intended.
Overruling the U.S. Supreme Court
Congress has issued the U.S. Supreme Court an official reprimand, in the form of amendments to the Americans with Disabilities Act (ADA). Over the course of several years, the justices interpreted the Act very restrictively, denying coverage to many. In late September Congress told the justices that they were wrong.
As of January 1, 2009, employers subject to the ADA face greater risk of being sued. As a result of amendments passed by Congress and signed into law by President Bush, “disability” is now to be read broadly—very broadly. A person will be deemed to be “disabled,” and protected by the ADA, if he or she is restricted in any “major life activity.” It doesn’t matter if a “mitigating measure” (e.g., medication, hearing aid) can control or eliminate the problem.
The new ADA amendments take effect January 1, 2009. Find out what you need to do to get ready. Get more information.
Vindication
The amendments overrule the U.S. Supreme Court, which had ruled against employees suffering from impairments that the justices didn’t think merited protection, such as those that could be mitigated or those that were deemed not to affect a “major life activity.”
The EEOC had proposed a list of activities that it believed were “major,” but the courts had viewed the EEOC document skeptically. The amendments are a vindication of the EEOC’s position.
The amendments are also an example of the system working in practice as it is supposed to in theory. Congress passed a law and the courts interpreted it in a way that some argued was inconsistent with the lawmakers’ intent. So, Congress took up the challenge and passed amendments to clarify its intentions. (Note: Congress can reverse any Supreme Court decision, except rulings having to do with Constitutional interpretations, which wasn’t the case here.)
What the amendments mean
The amendments are not huge, but they are significant and will mean trouble for many employers. They expand coverage to more people and cover more disabilities. It will be a whole lot easier for more employees to claim that they are disabled, thereby requiring employers to accommodate them.
Few of us in HR have a problem with the new law, at least in principle. If we’re in HR, we probably want to see everyone have an opportunity to succeed and grow, and we’re more eager than anyone else in the organization to provide accommodations.
That’s the principle. When it comes to practice, it is a good deal harder. On the one hand, you have to accommodate; on the other, asking for medical information can get tricky fast. We’re all under cost pressures, and these activities will almost always increase the cost of doing business, at least in the short run.
In fact, we don’t have a choice. Congress has spoken emphatically. From now on:
–Disability is to be interpreted broadly to benefit the employee in any questionable case.
–Major life activity is to be interpreted broadly. Anything (eating, sleeping, communicating, etc.), if it is related to the body, is almost certainly a “major life activity.” And, if it’s substantially limited by an impairment, it’s a disability. There is no wiggle room.
–Mitigating factors can’t be used to deny someone ADA protections. (With one big exception—eyeglasses and contact lenses.)
There are two other provisions of the new law that you should be aware of. One states that even if someone doesn’t really have a disability that limits a major life activity, you can still be liable for discrimination if you regard him or her as such and discriminate. (This isn’t as bizarre as it sounds. It just means that if you think someone is disabled, you can’t later argue that they really weren’t.)
What do the ADA amendments mean? Get BLR’s special HR compliance focus, The New ADA: What You Need to Know Now.
The second provision gives the EEOC authority to write regulations interpreting the law, including what “substantial limitation” means. We can expect regulations in 2009, and don’t expect them to be pro employer.
Policies and forms
The first thing we should be doing as HR people is educating ourselves to the details of the new law. Next, we should audit our policies, forms, checklists, etc., to make sure that they take the amendments into account.
At BLR we have many resources to help you do this, and we will be publishing more in the coming months. Some will appear here in the Daily Advisor; more will appear on our website, HR.BLR.com, mostly in the Discrimination/Disabilities section. The principal way to access these resources is with the following link: http://hr.blr.com/topics.aspx?topic=40. (Note: Some resources are free and available to all; some require you to be a subscriber.)
We are also publishing a special HR compliance focus, The New ADA: What You Need to Know Now, which is available here. This report outlines the changes, and contains sample policies and forms, as well as numerous other ADA-related resources. It is available for immediate download as a PDF file and is a real value at $29.95.
As always, if you have comments or questions about this column (or anything else about HR), please e-mail me at rbrady@blr.com.