Disability Claims Are Up

Last year we saw the impact of the Americans with Disabilities Act (ADA)

Amendments Act (ADAAA). The Act vastly expanded the definition of

"disability" bringing millions more people within the ADA's protection. While in

the past employers often won ADA cases on summary judgment, easily

establishing that the plaintiffs were not disabled and avoiding jury trials, that easy

out has been closed by the Act. THE ADAAA broadened the ADA's definition of

disability by expanding the term "major life activities," doing away with the

"substantially limited" requirement for those regarded as having a disability, and

overturning two U.S. Supreme Court decisions that interpreted the ADA's

definition of disability narrowly.

Even before these amendments, harassment claims based on disability were

increasing. Of the 27,262 total harassment charges made to the EEOC and state

fair employment practices agencies in fiscal 2007, 4,934 were for disability

harassment — the third most after race and sexual harassment and more than the

amount for age, national origin or religious harassment. Studies show that 75% of

workers will be disabled at some point in their working life.

What exactly did the ADAAA do? Basically, create new headaches for HR

and your mangers. One decision the Act overturned had let employers consider the

ameliorating effects of mitigating measures — such as hearing aids and medication

— when determining whether someone even has a disability. Now, under the new

Act, employers will be required to evaluate impairments without regard to

mitigating measures. If, for example, an employee's clinical depression is

controlled by medication, you have to look at their unmedicated state to determine

if they have a disability. The Act overturned another Supreme Court decision that

had concluded that the term "disability" should be viewed narrowly.

Furthermore, impairments that are episodic or in remission may now qualify as

disabilities.

Last but not least, the ADAAA also expands the term "major life activities,"

those activities that show you're disabled if they're affected. They now include

"caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping,

walking, standing, lifting, bending, speaking, breathing, learning, reading,

concentrating, thinking, communicating, working and the operation of a major

bodily function."

What should you do to handle the coming deluge of claims in your

organization? Take a tip from how you've handled sexual harassment issues and

institute specific and mandatory training on the ADA for all your HR

professionals, managers and executives. While most organizations are cutting

training budgets because of the economy, training saves you time and money in the

long run. While the ADAAA doesn't require ADA training, the amendments

provide a strong business case for it.

Take a page from the sexual harassment handbook in order to understand

how to handle the ADA Amendments. Remember that sexual harassment training

isn't specifically required by Title VII but most employers understood the

advantages of such training after the US Supreme Court decided

Burlington

Industries, Inc. v. Ellerth

and Faragher v. City of Boca Raton in 1998. Those

decisions established an affirmative defense for employers with effective sexual

harassment policies and training. Good training on harassment reduced

inappropriate workplace conduct and gave employers an affirmative defense if

litigation arose.

Training should, at a minimum, cover the following:

The act broadly expanded the definition of "major life activities"

and removed the defense of mitigating measures from considerations in disability

determinations. The result is that almost anyone who has, or who is regarded as

having a serious impairment or disease that is not temporary will qualify as

disabled. In training, include any applicable state laws.

Applicants are now covered;

therefore you must re-evaluate hiring processes. For example, reading is now a

major life activity. If you're hiring a maintenance staff position for example, and a

candidate can't read, you'll have to provide a reasonable accommodation to help

the candidate complete the application process. If it is an essential job function,

you don't need to provide such assistance. And you don't need to read the

applicant's mind; they need to specifically ask for assistance.

When someone requests an

accommodation, you're required under the amendments to engage in an interactive

process with them to determine if a reasonable accommodation can be provided to

enable that person to perform the position.

These requirements vary depending

greatly on the organization and the position. Train your mangers to work with HR

and your attorneys to determine reasonable accommodations.

As noted above, harassment claims are growing under the

ADA. Teach your managers to prohibit harassment and report complaints of

impairment-related harassment to HR.

Retaliation is also prohibited. If an employee requests accommodation, that

individual is protected.

Last but certainly not least, it's important to train your people on the complex

interplay between the ADA, the Family and Medical Leave Act, similar state laws,

workers' compensation laws, and Social Security claims.

Undoubtedly, the amendments make ADA compliance more complicated. Many

of the requirements are counter-intuitive for most managers. It's unrealistic to

expect them to understand them on their own. Resolve this year to train your HR

team and managers to provide a defense if you go to trial and to prevent mistakes.

Copyright © 2010. No part of this material may be reproduced without written permission from Lynne Eisaguirre,

Workplaces That Work, 303-216-1020, Lynne@Workplacesthatwork.com,

www.workplacesthatwork.com