The Impact of the New Federal Disability Discrimination Law

With the signing of S 3406 into law, significant changes are expected to take place regarding disability discrimination issues in the workplace as the law introduces amendments to the old federal Americans with Disabilities Act (ADA).

Although the basic definition of “disability” as an “impairment that substantially limits one or more major life activities” is retained, the new law may change the way these statutory terms will be interpreted. Among the significant changes would include the following:

It emphasizes a broader definition of disability

To revise the portion of the EEOC regulations defining the term “substantially limits”

To expand the definition of “major life activities” to include two non-exhaustive lists such as some activities that the EEOC recognized and unrecognized before and major bodily function

To exclude mitigating measures other than “ordinary glasses or contact lenses” in assessing disability

It states that an impairment that is episodic or in remission is a disability if it substantially limits a major life activity when active

It provides that an individual prohibited by the ADA (e.g., failure to hire) because of an actual or perceived impairment will meet the "regarded as" definition of disability, unless the impairment is transitory and minor

It provides that individuals covered only under the "regarded as" prong are not entitled to reasonable accommodation

“Regarded as disabled” does not include employees with a “minor” impairment, or a “transitory” impairment defined as lasting 6 months or less. In addition, an employee who says he or she is being regarded as disabled is not entitled to a reasonable accommodation.

With these changes, ADA-related claims and lawsuits are expected to increase hence employers are encouraged to prepare and make the necessary changes in workplace set-up and policies before its implementation on January 1, 2009.

Aside from broadening the protection for disabled workers, the new law has also rejected past Supreme Court rulings, which are deemed too restrictive of disabled employees’ rights.

As these amendments will take effect, it is expected that more employees will fit within the definition of disabled under the ADA hence the increase in claims and lawsuits.

How will this affect the employers?

Initially, the impact of these amendments may not be felt quickly. However, it can be expected that certain policies and practices in the workplace have to be modified. Some employees who were not previously protected may find themselves covered by the broader definition. This will result in increase number of claims. Hence, employers will need to document and engage in discussions to determine if reasonable accommodations are necessary.

The amendments will also be critical for employers, as they will be compelled to establish policies and procedures for supervisors in handling situations related to disability discrimination. In this case, training supervisors on this matter will be required.

To anticipate the effects of the amendments, an employer may do the following:

Revise policies related to the ADA, discrimination, and complaint procedure

Make sure job descriptions spell out essential job functions
Establish procedures for responding to requests for reasonable accommodations and to document the interactive process

Revise medical certification forms

Train supervisors and managers on the new law and how to handle requests for accommodation

To consider diversity training that includes disability issues for all employees

Anticipate the detailed regulations during implementation in 2009