The new amendments make major changes to the original ADA, including what is considered a major life activity and the definition of disability. Employers must be aware of the changes and the effect they will have on their businesses. From the Word on Employment Law with John Phillips:
All we know now is that the realm of “the disabled” is about to be significantly enlarged. While it may be incorrect to say the new Act makes everyone disabled, we’ll be much closer to that point than we’ve ever been. Reasonable accommodation requests will become more frequent and more complicated. Disability discrimination charges and litigation will increase dramatically. Given the new Act’s language, it’ll be difficult for courts to dismiss these cases without letting a jury decide them.
In many respects, we’re starting all over with disability discrimination. If the Supreme Court has, in the past, given employers an advantage in these cases, the advantage is about to be given to employees.
If you haven’t started already, employers should be preparing for how the changes to the ADA will effect employment processes, accommodating employees with disabilities and compliance requirements.
In a recent Workforce article, author Tina M. Maiolo explained the next steps employers should take to prepare for the upcoming ADA changes. Here are her seven steps to compliance with the ADA Amendments Act:
- Assume every employee is healthy. Presume nothing, especially whether the employee has any type of impairment.
- Assume all employee impairments fall under the ADA. When an employee claims to have an impairment, always assume that it is qualified as a disability under the ADA Amendments Act. Employers are “safer to assume from the outset that an impairment qualifies as a disability than trying to argue later that it does not.”
- Accommodate employee impairments. After a claim is made, be sure to make all reasonable attempts to accommodate the employee’s impairment. Unless the accommodation creates “undue hardship,” by being so burdensome or expensive that it changes the nature of the business, employers must be accommodating.
- Review and edit job descriptions. “An employer’s defense against an ADA Amendments Act claim is likely to rest on whether the disabled employee was "qualified" to perform the essential functions of his or her job.” Write an accurate and detailed job description from the beginning that clearly defines essential job functions.
- Begin ADA Amendments Act training. “HR should treat the ADA Amendments Act as an entirely new law.” Everyone involved in the hiring process, including HR and managers should go through training to understand the changes.
- Throw away, modify or create disability policies. Either start from scratch writing new disability policies, or modify your existing policies to reflect the latest ADA changes. It would be best to have these done before the law goes into effect on the first of the year.
- Make modifications as the courts interpret the new amendments. “The impact of the ADA Amendments Act will not be static,” they will continue to evolve over time. Stay on top of the latest changes and your business will be better protected.
Understanding the changes to the ADA is the first step to compliance. Once the law goes into effect on January 1, 2009, it is up to employers to choose to follow what is required of them under the law.
If you’re looking for help managing employee accommodation requests, the ComplyRight ADA Administration System contains all the forms and information employers need to comply. Complete with forms, tip sheets and valuable best practice information, the system can help you manage any request.