The ADA was passed to provide legal protections for, and to end discrimination against, workers with disabilities. The ADA is a wide-ranging civil rights law that prohibits discrimination based on disability. It affords similar protections against discrimination to Americans with disabilities as the Civil Rights Act of 1964, which made discrimination based on race, religion, sex, national origin, and other characteristics illegal.Under the ADA, an individual is considered to have a “disability” if that individual either (1) has a physical or mental impairment which substantially limits one or more of that person’s major life activities, (2) has a record of such an impairment, or (3) is regarded by the covered entity as having such an impairment. The determination of whether any particular condition is considered a disability is made on a case by case basis. Show When the ADA was first passed into law in 1990, federal courts were very strict in determining which employees met the ADA’s definition of a “disability,” resulting in the dismissal of many cases. A series of such court decisions made it increasingly difficult to qualify for the law’s protections. To remedy this problem, Congress passed the ADA Amendments Act of 2008 (ADAAA), which went into effect on January 1, 2009. The ADAAA made five changes to the ADA that are significant.
It is important that employers be up to speed on these changes. This is especially important because the ADAAA created a shift of emphasis in applying the law. In enacting the ADAAA, Congress instructed that it should be interpreted to favor “broad coverage of individuals under the ADA,” and that courts must focus not on whether an employee is “disabled,” but on whether the “employer is complying with its obligations under the law.”
REASONABLE ACCOMMODATIONThe ADAAA did not change the definition of reasonable accommodation, but does clarify that only individuals who meet the first (actual disability) and second (record of a disability) parts of the definition are entitled to accommodations. Individuals who only meet the third part (regarded as) are not entitled to accommodations. Even though the definition did not change, it is clear that with a broader definition of disability, more focus will be placed on providing reasonable accommodations. One thing employers should keep in mind regarding a request for reasonable accommodation is that the accommodation does not have to be tied to the substantially limited major life activity that established that the employee has a disability. For example, a person with cancer may establish that he has a disability because he is substantially limited in normal cell growth, which is listed as a major life activity under the “bodily functions” category in the Amendments Act. However, his accommodation request may be related to nausea resulting from his medical treatment. Once the employee establishes that he has a disability, then the employer must consider providing accommodations for any limitations he has as a result of his impairment, not just the limitation that established his disability. Remember that the reasonable accommodation obligation under the ADA is flexible. Employers can choose among effective accommodation options and do not always have to provide the requested accommodation. Employers do not have to provide accommodations that pose an undue hardship, nor do they have to provide as reasonable accommodations personal use items needed in accomplishing daily activities both on and off the job. Employers do not have to make an accommodation for an individual who is not otherwise qualified for a position, nor remove essential functions, create new jobs, or lower production standards as an accommodation. WHAT THE ADAAA MEANS FOR EMPLOYERSThe implications of the ADAAA are profound for employers, with a much broader scope of employees qualifying as disabled under the ADAAA. Under the ADAAA, one can now argue that anyone treated for a chronic condition (or one that risks returning) will be forever “disabled”– even if that person has no signs or symptoms. In fact, because of the natural aging process, most people will develop a condition at some point that will be considered a disability under the ADAAA. Combining this new ADAAA with the Family Medical Leave Act (“FMLA”), every employee who has a “disability” will now likely also qualify for FMLA leave. Employers may see more demands for intermittent FMLA leave, as well as more employees seeking longer periods of time off. Remember, you may not use FMLA leave as a basis to discipline an employee for poor attendance. Employers are cautioned to grant reasonable FMLA to employees with a disability. Some employees may go on disability leave and request FMLA time off once the disability leave time runs out. Employers are cautioned to use an interactive process to work out a reasonable period of FMLA leave following a disability leave. Tips for Employers
The ADAAA creates a broad class of employees who can claim they are “disabled,” and are potentially entitled to protected leave and job accommodations. The ADAAA also contains a private right of action, allowing employees who believe that they have been discriminated or retaliated against to sue their employer. In order to avoid such suits, employers must understand their obligations, update their policies, and train their managers and HR staff about the recent changes to the ADAAA. What are the ADA guidelines?The Americans with Disabilities Act (ADA) prohibits discrimination against people with disabilities in several areas, including employment, transportation, public accommodations, communications and access to state and local government' programs and services.
What are the most commonly requested accommodations in the workplace?What types of accommodations are generally considered reasonable?. Change job tasks.. Provide reserved parking.. Improve accessibility in a work area.. Change the presentation of tests and training materials.. Provide or adjust a product, equipment, or software.. Allow a flexible work schedule.. |