From Bloomberg Businessweek (April 27, 2011) “Employers Gird for Disabilities Act Changes”
"Amendments to the Americans with Disabilities Act that take effect on May 24 are intended to make businesses focus on accommodation."
Too often running a business can also mean keeping up with the evolving patchwork of laws, regulations, taxes, and expenses, but with that in mind here’s one more. New amendments to the Americans with Disabilities Act (ADA) take effect on May 24th. If you are an employer, you may want to pay attention.
The ADA was passed in 2008, but last month the U.S. Equal Employment Opportunity Commission mandated new regulations and amendments to the original law, that go into effect this month. Businessweek recently published an informative article on the subject, along with an interview with Jeff Nowak, a labor and employment attorney at Franczek Radelet in Chicago. According to Nowak, the regulations shift the burden of proof from employee to employer in labor disputes as well as expand the covered disabilities that require accommodation.
As originally enacted, the ADA defines someone with a disability as one who has a physical or mental impairment that substantially limits one or more major life activities.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.
The amendments do nothing to change that basic definition. However, they do make sweeping changes in the manner in which these terms are now 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.
These new regulations list certain impairments that the EEOC says will virtually always be found to be a disability, to include deafness, blindness, autism, cancer, cerebral palsy, diabetes, epilepsy, and major depression. What's interesting about this list is that 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.
According to Bloomberg’s article, the bottom line is that these amendments will cost employers more money and resources. 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. Employers will need to adapt their focus away from whether a person is disabled to how they can help the person perform their job.
To find out more, consult the ADA Amendments Act of 2008 factsheet available on the U.S. Equal Employment Opportunity Commission website.