Employers Gird for Disabilities Act Changes

Recent amendments to the Americans with Disabilities Act widen the range of disabilities and shift the burden of proof from employees to business owners in labor disputes, says Jeff Nowak, a labor and employment attorney at Franczek Radelet in Chicago. The new regulations issued last month by the U.S.Equal Employment Opportunity Commission were mandated by the ADA Amendments Act of 2008 and will take effect on May 24. In fiscal year 2010, there were 25,165 disability discrimination charges filed with the EEOC, up from 21,451 charges in fiscal year 2009.Nowak says employers will have to spend more in the future to accommodate disabled employees and assign staff to handle impairment requests. He spoke recently to Smart Answers columnist Karen E. Klein. Edited excerpts of their conversation follow.

Karen E. Klein: How do the amended rules compare to the original Americans With Disabilities Act of 1990?

Jeff Nowak: The amendments were enacted on Sept. 25, 2008, and became effective on Jan. 1, 2009. The law made a number of significant changes to the definition of "disability" under the Americans with Disabilities Act (ADA). Congress approved the final regulations drafted by the EEOC on a bipartisan vote and they were published last month.

As originally enacted, the ADA defines someone with a disability as one who has a physical or mental impairment that substantially limits one or more major life activities. Individuals also may be protected by the ADA if they are regarded as having a disability, such as HIV, or having a record of a disability, such as alcoholism.

What does the amended law change?

It did nothing to change that basic definition. However, since the ADA took effect, the courts have construed the definition in a relatively narrow fashion. So a court could dispose of a case alleging discrimination by finding that the individual was not actually disabled.

The amendments make sweeping changes in the manner in which these terms now are construed. The final regulations include specific language that says the term "disability" should be broadly construed to the maximum extent permitted by the terms of the ADA.

The message from Congress and the EEOC for business couldn't be any clearer: Stop focusing on whether someone is disabled and focus on the potential discrimination and reasonable accommodation.

These new regulations list certain impairments that the EEOC says will virtually always be found to be a disability. What are those conditions?

They include deafness, blindness, autism, cancer, cerebral palsy, diabetes, epilepsy, and major depression. It's not a per se list, stating that every one of these conditions will always be considered a disability, but it went nearly that far.

What's interesting about this list is the EEOC has always taken the position that you have to conduct an individual assessment to see what the person can or can't do before you make a determination of disability. For instance, I can't assume that diabetes is a disability until I make an assessment of the employee's disability. Now the burden is shifted to the employer to prove it does not constitute a disability.

Certainly if someone is blind or in a wheelchair with cerebral palsy, there's not much dispute that they're disabled.

If someone's in a wheelchair, obviously they have some limitations with life activities. What I often find my clients grappling with is when an employee comes to them and says, "I've got XYZ condition; I need a leave, or I need some modification to my job," when the employee does not look or seem disabled.

Employers would often question whether that kind of person was disabled. In the past, if the employee sued under the ADA, the trial court could act on a narrow definition of the word "disability" and dismiss the case at the initial assessment. Now we're going to see more cases getting through that initial assessment.

Meaning it will be easier for someone to claim they have a disability and need special accommodations and have that claim upheld in court?

I've had plenty of employers cynically comment that these regulations now consider everyone disabled. When a request is legitimate and straightforward, it virtually always is granted by the employer. And an employee presenting a fishy request is often creating issues in other areas of their employment as well.

Can you give an example of a fishy request?

The requests we see in the real world can extend into absurdity. People will say, "I don't like my supervisor; I don't want to work with that person" or "I want to work particular hours because I have trouble getting up in the morning" and justify it by whatever condition they have. That's what gets employers frustrated—when they see abuse.

EEOC statistics show that 50 percent to 60 percent of the claims filed since 1997 were determined to have "no reasonable cause." How often does abuse occur?

I can't share empirical information, but almost all of the clients I work with deal with abuse in accommodation requests and requests for leaves of absence.

What impact will these new regulations have on small business owners?

It will cost them additional money and resources to respond to those requests. The EEOC estimated that 12 million to 38 million disabled people may be impacted by the amendments. And they estimated a range of $60 million to $180 million in costs to businesses associated with the increased need for accommodation, in addition to any legal costs. That estimate is likely to be low.

Businesses will have to go to greater lengths to provide accommodations and their staffs will have to respond to those increased accommodation requests. At the back end, it's clearly going to allow litigation that was easily dismissed in federal court to live on much longer.

In light of these regulations, what actions do you recommend for small business owners?

Employers will have to adapt to life with a greater number of people being considered disabled. Not every impairment will constitute a disability, but employers need to adapt their focus away from whether a person is disabled to how they can help the person perform their job.

Will that be a difficult shift?

It is difficult when you're dealing with employees who do not visibly appear to have any impairment whatsoever, but are dealing with issues of stress or fatigue. Those pop up a lot.

Regardless, the reasonable accommodation process has to become a priority for employers. They have to review and revise their policies to ensure that employees are aware of them and to make sure that the lines of communication between employer and employee are open.

And it will be more important than ever before for employers to maintain accurate documentation and processes for identifying, evaluating, and providing reasonable accommodations, so they can show down the line that they've actively engaged with an employee.