2009 is going to be remembered as the year that the Americans with Disabilities Act (“ADA”) became the full employment act for employees’ lawyers. That’s because dramatic changes to the ADA went into effect on January 1, 2009. No longer can an employer assume that the ADA is an concern only if an applicant shows up in a wheelchair or with a seeing eye dog. The ADA now will significantly affect every workplace (except those small businesses with less than 15 employees) and employers need to be educated and ready to respond appropriately.
Briefly, the ADA protects mentally or physically impaired individuals who are qualified to perform a job from discrimination because of their disability. Sounds good, and it is. But for employers, the devil is in the details. The ADA Amendments Act (“ADAAA”) passed last year by the 110th Congress expanded the definition of disability in a way that I believe makes virtually every Baby Boomer a potential plaintiff in a disability discrimination lawsuit. Why? Because most of us born between 1946 and 1964 are starting to feel some of the aches and pains of middle age and that is about all that is required to claim a disability under the ADA. In addition to the 70 million Baby Boomers in the workforce, there are many younger workers who are also physically or mentally disabled.
You are disabled under the ADAAA if you have an impairment that substantially limits one or more major life activities. “Major life activities” now include walking, seeing, hearing, and breathing, as you would expect, but also sleeping, bending, learning, reading, concentrating, thinking, communicating and working. The term also includes the operation of any major bodily function, such as respiratory and circulatory, as you would expect, but also, reproductive, digestive, and immune system.
If an employee is disabled or even regarded as disabled because of past problems (such as drug addiction that is now under control), you as an employer must provide reasonable accommodation of that employee’s disability if necessary to allow the employee to perform the essential functions of his/her job. Some employment lawyers believe that the “regarded as” component could mean that any employee who ever had a serious medical condition will always be regarded as disabled and protected by the ADA, even if the disease is now in remission.
You can expect to deal with the ADA when an infertile female employee wants to take time off as an accommodation so that she can receive fertility treatments. An employee who needs a 25-inch computer monitor because his poor vision makes it hard for him to read even with his eyeglasses may now need to be accommodated. An employee who is bi-polar may be able to request moving away from an annoying coworker if she says the coworker is a depression trigger. The fact that the employee could take mitigating measures to fix or control the problem, such as taking her medications to prevent depressive episodes, can no longer be considered to determine whether the employee is actually disabled.
What can you as an employer do to keep your company out of legal hot water with the ADA?
- Put a written policy in place to inform employees that the company will reasonably accommodate them and set out the procedure by which an employee should ask for accommodation to make sure the request doesn’t get lost in the shuffle or ignored.
- Get some training for yourself and all of your supervisors to make sure each of you thoroughly understands what the ADA requires of you.
- Reconsider the most basic of your employment practices. For example, reading is now a major life activity and applicants are covered under the ADA. Do you require applicants to fill out an application form? You may need to verbally tell every applicant that if he needs help reading or completing an application, that you will provide a reasonable accommodation. Another example: you should never again use the term “return to full duty” after an employee has had a worker’s compensation injury, because the ADA prohibits you from expecting any employee to work without the need for disability accommodation.
- Be ready to interact with any employee that requests accommodation of a disability. Most employees won’t use the words “reasonable accommodation” or “ADA”. But any employee who asks for time off to see a medical professional, who calls in to report an absence for anything more serious than the flu or who gives a physical or mental excuse for poor performance may be telling you enough to trigger your obligation to begin the interactive process to determine if a reasonable accommodation for a disability is needed.
- Get over your belief that you should treat every employee the same and expect similar effort from every employee. The cold hard truth is that the ADA requires you to provide special treatment to disabled employees. And it requires you to spend some company money to provide that special treatment. You may not like that, but you better be ready to deal with it to avoid expensive government investigations and/or civil lawsuits.
- Don’t allow your company to be considered a hostile work environment for disabled people. Be as diligent about monitoring your workforce for disability harassment and retaliation as you would be for sexual harassment. Jokes, slurs, chain e-mails, laughs about Timmy from “South Park” around the water cooler, gossip about a coworker’s past addictions, and other indications in a workplace of general insensitivity to physical and mental disabilities can come back to bite you as hard as a lawsuit for failing to reasonably accommodate a disability.