Collaboration Leads to Revised ADA Bill
The proposed law will expand narrow court interpretations that have restricted ADA coverage in the workplace for people with disabilities. It is expected to increase the overall number of disabled people able to request reasonable accommodations, but should not have a significant impact on ADA employment policies already in place.
By Tom Starner
Since becoming federal law in 1990, the Americans with Disabilities Act has had a major impact on the U.S. workplace. The problem is, whatever the ADA's net effect has been on employment and the working disabled in general, subsequent legal decisions have led to as much frustration as success.
That court-produced frustration, in turn, has caused both disabled advocates and business leaders to seek out more consistent, fair ADA rules and regulations. It was a rare chance for groups with frequently opposing views to work together.
On Wednesday, those groups came a step closer to resolving any differences (and clarifying specific issues) on the ADA front, when two key committees within the U.S. House of Representatives "marked-up" the ADA Amendments Act of 2008.
The House Judiciary committee approved the measure on a 27-0 vote, and House Education and Labor Committee approved it by a 43 to 1 margin.
To get that strong Congressional consensus, an alliance of employer groups and disability advocates -- including the U.S. Chamber of Commerce, National Association of Manufacturers, American Diabetes Association, Society for Human Resource Management and American Association of People with Disabilities -- worked together over the past few weeks to hammer out key clarifications included in the ADA Amendments Act.
Most importantly, the ADA Amendments Act (formerly called the ADA Restoration Act) will expand narrow court interpretations that have restricted ADA coverage in the workplace for people with diabetes, epilepsy, serious heart conditions, mental disabilities and cancer.
According to the
U.S. House of Representatives Web site
, the Act:
* Rejects the erroneous Supreme Court decisions that have reduced protections for people with disabilities under the ADA, restoring original Congressional intent.
* Makes it absolutely clear that the ADA is intended to provide broad coverage to protect anyone who faces discrimination on the basis of disability.
* Clarifies the definition of disability, including what it means to be "substantially limited in a major life activity."
* Prohibits the consideration of mitigating measures, such as medication, prosthetics and assistive technology, in determining whether an individual has a disability.
* Provides coverage to people who experience discrimination, based on a perception of impairment, regardless of whether the individual experiences disability.
However that coverage to employees who are "regarded as" disabled -- those who are not actually disabled -- would be limited.
Employers would not need to provide reasonable accommodations to those employees, says Lawrence Z. Lorber, a Washington-based partner with the Proskauer Rose law firm. In addition, such employees would need to qualify for the job being sought -- not just the "essential elements" of the job, and if an impairment is involved, it must be an impairment of six months or longer.
According to proponents, the bill is expected to be on the House floor before the July 4 recess. If passed by the House, then the bill would need to be passed by the U.S. Senate before going to the White House for presidential signature. Proponents are hopeful that the Senate will approve the ADA Amendment Act in an August-September time frame.
"The ADA Amendments Act is the result of unprecedented discussions between leading employer and disability groups that produced a true compromise by all sides," says Daniel Yager, senior vice president and general counsel of the HR Policy Association, a group of HR leaders from large corporations.
"The bill approved [Wednesday] by both committees would clarify the ADA by addressing court decisions that eliminated intended protections for individuals with disabilities, while recognizing realities of the workplace," he says.
"The Act is a reasonable approach that is also workable from an employer's perspective," Yager adds. "It maintains the current framework, and clarifies when individuals are covered by the Act's protections."
Tony Coelho, a former U.S. congressman and primary author of the original Americans with Disabilities Act, agrees that both employers and the disabled will benefit from this law.
"This bill strikes the right balance between the rights of people with disabilities and the rights and obligations of employers," says Coelho, the immediate past chair of the Epilepsy Foundation's board of directors, and a person with epilepsy.
For HR and employers, while the expanded definition of what constitutes disability is expected to increase the overall number to disabled people, the new law should not have a significant impact on ADA employment policies already in place, says Randel Johnson, vice president of labor, immigration and employee benefits at the U.S. Chamber of Commerce in Washington
For example, this bill should not affect the accommodation aspects of disability, Johnson says.
"On a day-to-day basis, the situation will not be much different regarding how companies create and manage their ADA policies and processes," he says.
Simply, the ADA Amendment Act would redefine "disability" to be any actual, past or perceived physical or mental impairment that "substantially limits a major life activity," and then defines this phrase to mean "materially restricts a major life activity," according to the American Association of People with Disabilities, a major driver in the compromise bill language.
Lorber, who served on the U.S. Chamber of Commerce's committee on this issue and was involved in the negotiations between disability groups and business groups on the bill's definitions of what constitutes a disability, says that HR executives need to understand that the range of coverage under the ADA will be expanded if this law is passed.
"Basically, we'll go back to the original intent and definition of what it means to be disabled," he says. "It's clear that if an impairment limits a major life activity, that person is covered by the Act, as opposed to today, where that's not always the case."
Most of all, Lorber says, when and if the new ADA Amendments Act becomes law, HR professionals should be more careful in creating even more accurate job descriptions.
"When creating job descriptions, they should make sure they are considering real criteria and real abilities," he says. "For HR, this bill is going to put an added obligation to understand their workplace and processes, and how the new Act will change them.
"You just don't want the situation to become disruptive," he says. "That way, you can help avoid litigation once it becomes law."
June 19, 2008 Copyright 2008© LRP Publications
|
Print
Email
Write to the Editor
Reprints
