Employers Vulnerable under New ADA Amendments

President Bush signed amendments to the Americans with Disabilities Act (“ADA”) into law on September 25, 2008, that will make it easier for disabled employees to win lawsuits against their employers.The law goes into effect January 1, 2009.

The amendments specifically prohibit courts from considering “mitigating measures” in determining whether an employee can sue under the ADA. Since 1999, upon direction of the United States Supreme Court, lower courts have looked at aids like insulin for diabetics or prosthetics for amputees to determine whether an employee is actually disabled and therefore can sue under the ADA. If medication or equipment eliminated the effects of the disability, then the employee couldn’t take advantage of the ADA to sue his/her employer.

For example, nearsighted pilots who were barred from flying commercially tried to sue United Airlines for disability discrimination, but the Supreme Court said that corrective lenses meant that they were not disabled. They just didn’t meet the physical criteria required by United Airlines. Granted, this type of circular reasoning made for some strange legal opinions. But the end result was that many employers had less to fear about the exorbitant costs of defending an ADA suit.

Those relatively carefree days are over for businesses. With the new ADA amendments, Congress has specifically directed the courts to interpret the ADA broadly (i.e., in the employee’s favor). Even if an employee is not actually disabled, but only perceived as impaired, Congress and the present Administration mandated that the employee could take advantage of the ADA to sue his/her employer.

What does this mean from a practical standpoint? This means that you as an employer must be doubly careful in your hiring and firing practices that you don’t discriminate against disabled employees or those that are perceived as disabled. That includes former drug addicts, reformed alcoholics, bi-polar employees or others with mental or physical impairments or suspected impairments.

I would expect that the group of employees eligible to sue under the ADA could include most of the U.S. population at one time or another. After all, 118 million prescriptions for antidepressants were written in the United States in 2005. Ten percent of the American population has been diagnosed as depressed. By 2020, depression is expected to be the second most common disease in the world. And that is just one disability that you as an employer have to know how to handle without discrimination.

You must also become very familiar with the process of “reasonable accommodation”. Any employee who asks for extra time off or flexible hours or different duties because of a physical or mental challenge must be taken seriously. A formal process of considering the employee’s request for accommodation and deciding what changes to the job structure have to be undertaken must occur anytime an employee asks for a change based on a physical or mental impairment.

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