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Disability in the Second Act

The amended Americans with Disabilities Act will most likely lead to more discrimination claims. In addition to making sure organizations engage disabled workers in conversations about their need for accommodations, experts say, HR should create -- and communicate -- strong absence- and disability-management programs.

Friday, June 3, 2011
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When it comes to measuring the realities and ramifications of the Americans with Disabilities Act Amendments Act, employers need to know a few things up front, experts say.

One, it's not that the amended act, which became effective on May 24, represents a new game. It's that the amended act has returned the ADA to its original, intended scope. A series of U.S. Supreme Court decisions since the genesis of the ADA in 1990 had narrowed the potency of the original act to where it was almost inoperable.

"It just started snowballing to the where the disability community was saying, 'You know, it is getting to the point where, if you were disabled enough to prove that you're disabled, you'd be too disabled to work anyway,' " says Richard Pimentel, a senior partner with the Granada Hills, Calif.-based consulting firm Milt Wright & Associates.

Pimentel is a disabled Vietnam War veteran whose efforts to train employers on the needs of disabled workers contributed significantly to the creation, passage and signing into law of the original ADA.

In addition to expanding the definition of what constitutes a disability, the amended act requires employers to document how well they are training supervisors to accommodate disabled workers. For those who want to avoid substantial discrimination claims, the construction of strong absence- and disability-management programs that are well communicated to employees will be a must.

"I really do think that is going to be the focus of the law, that interactive process," says Adeola Adele, the New York-based U.S. employment practices liability leader for Marsh, who notes that the ADAAA created a much broader definition of disability.

Employers now stand a much better chance of losing the resulting legal battle if a discrimination claim is filed, according to Pimentel.

"First of all, employers aren't afraid that they are going to see more claims," Pimentel says. "The employers were winning more than 80 percent of the claims."

"The employers are afraid they are going to lose some of these [new] claims, so let's get that straight," he adds.

For example, under the amended act, an employee who suffers from depression may be able to function quite normally with the aid of medication but will still be considered to be disabled and will need to receive accommodation.

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Adele says the frequency of discrimination claims will likely increase -- as will the frequency of litigation losses -- but she says the severity of individual claims will likely not change all that much, with class actions in this field being a rarity.

"I don't think the individual claims that we would get would warrant tightening of coverage for ADA discrimination claims," Adele says.

Existing employment-practices liability insurance policies shouldn't have to be rewritten or modified, she says. "We would push back on any attempt to limit coverage just because the act has been expanded."

Employers, however, should be integrating their disability-management programs to include non-occupationally injured and ill employees, and not just workers' compensation cases, according to Pimentel.

"That is the big trend, and by the way, from an ADA-compliance standpoint, I recommend employers take a close look at doing that," Pimentel says.

Employers should also be revisiting how much training they are doing among their supervisors on employee etiquette, language and comfort levels in communicating with disabled employees, he advises.

"Talking to them about their needs for accommodation is ... an enforced requirement under the law," Pimentel says.

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