ADA Restoration Act Threatens Employers and People with More Significant Disabilities

DMEC StaffDMEC News

Employer advocates warned of broad language and potential negative consequences from the “Americans with Disabilities Act Restoration Act” (ADA-RA). Employers must become educated and respond quickly to this legislation: It has enough co-sponsors to pass the House (HR 3195) and received supportive hearings on Nov. 15 by the Senate Committee on Health, Education, Labor and Pensions (S 1881).

Proponents of the legislation say a string of legal decisions has made it too diffi cult for individuals with certain health conditions to establish they have a disability for purposes of the ADA. Opponents say the bills go too far, creating protections for people with insignifi cant or correctable impairments that may ultimately hurt employment rights of people with more significant disabilities.

It remains to be seen if the bills will get traction in a supportive Democratic Congress, or if election-year delays will ultimately kill the legislation. ADA experts (see ADA Insiders on page 9) suspect the legislation could achieve passage in 2008. Opponents of the bills urge employers to contact their Representatives and Senators to ask a “NO” vote (see links below).

During the Senate hearings on Nov. 15, Camille A. Olson of Seyfarth Shaw LLP stated:

“In essence, S. 1881 changes the focus of the ADA from whether an individual has a functional ‘disability’ to whether the individual has an ‘impairment,’ without regard to whether the impairment or ailment in any way limits the individual’s daily life ….

“S. 1881, as currently drafted… would expand the ADA by (1) removing the current ADA requirement that a disability ‘substantially limit a major life activity;’ (2) prohibiting consideration of mitigating measures that an individual may be using, such as medication or devices, when determining whether the individual has a disability; and (3) shifting the burden of proof from employees to employers as to whether an individual is ‘qualified’ to perform the essential functions of a job.”

She went on to say:

“S. 1881 … will give virtually every employee the right to claim reasonable accommodation for some impairment, no matter how minor, unless the employer can prove that doing so would be an undue hardship. Employers will find themselves addressing potential accommodation requests from individuals with high cholesterol, back and knee strains, colds, the fl u, poison ivy, sprained ankles, stomach aches … that go far beyond any reasonable concept of disability.

“Similarly, prohibiting employers from considering mitigating measures in determining whether someone has a disability will, in effect, make almost every individual someone who has a disability under the ADA.

“The clearest example pertains to eyesight … By requiring that we evaluate whether someone has a sight impairment without regard to mitigating measures means that anyone who wears glasses, contact lenses, has had laser surgery, or at any time in their life did not have 20/20 uncorrected eyesight, will be considered a person with a disability under the ADA.”

Additionally, she said:

“If Congress enacts S. 1881 it should be prepared for the federal courts to be inundated with tens of thousands of cases, if not more, filed by workers’ compensation attorneys on behalf of individuals with minor work-related injuries…. Perhaps the more troubling concern is that these amendments will have the effect of diluting the definition of disability to such an extent that persons who are truly disabled, such as those who are deaf or blind or unable to walk, will find themselves in a long line of plaintiff s.

“Similarly, employers would be forced to implement (many more) workplace accommodations for people with (far less significant impairments)…. With limited resources, employers may be faced with deciding whether to provide sign language interpreters for deaf employees at company meetings or special chairs or other mechanical devices to people with sore backs, tennis elbow, or sprained wrists. These are decisions that employers should not be required to make. Nor do they benefit the people whom the ADA is truly intended to protect.”

DMEC CEO Marcia Carruthers strongly urged members to read the language of the bills and contact your Senators and Representative to express your concerns.

The House bill can be viewed at: www.govtrack.us/congress/bill.xpd?bill+h110-3195

The Senate bill can be viewed at: www.govtrack.us/congress/bill.xpd?bill+s110-1881

To locate your Senators and Rep. home pages for email: www.govtrack.us/congress/findyourreps.xpd

ADA Insiders Say Re-Tooled ADA Laws Would Require Broader Compliance Effort

The disability community wants to retool the Americans with Disabilities Act (ADA), promoting the ADA Restoration Act in Congress to “restore the original intent of the ADA.”

In 1990 the ADA was hailed as “a new day” for people with disabilities, but plaintiff s consistently lost in court when they tried using the ADA to secure employment rights. “Originally, I predicted the biggest issues with this legislation would be what constitutes a ‘reasonable accommodation’ and whether this requirement places an ‘undue hardship’ on employers,” said Richard Pimentel, the keynote speaker at DMEC’s 2008 Annual Conference in Denver. A promoter of the original ADA, Pimentel is an advocate for people with disabilities and a popular educator to the employer community.

The disability community was stunned when ADA litigation focused not on accommodation, but on whether plaintiff s are “disabled.” To bring suit, ADA plaintiff s must meet the test of having “a physical or mental impairment which substantially limits one or more major life activity(ies),” or a record of such impairment, or be regarded as having such impairment. Employers frequently use this test as a threshold barrier to lawsuits, and have claimed victory in about 90 percent of cases. Studies have shown that employment rates for people with disabilities have not increased, and may have decreased, since passage of the ADA.

Seizing a favorable political environment, the disability community wants to turn that around with the ADA Restoration Act. Th ey have the support of Congress and are likely to secure passage of some version this year, but the fi nal shape may still be open to negotiation, according to Frank Alvarez. A partner in the prominent Jackson Lewis employment law fi rm, Alvarez toured the U.S. with Pimentel and Milt Wright to educate employers about the ADA soon after its passage. He leads the National Disability Leave and Health Management Practice for Jackson Lewis.

In the November hearings of the Senate Committee on Health, Education, Labor and Pensions, an attorney testifi ed the ADA Restoration Act will have unintended negative consequences for people with disabilities (see Employer ADA Alert article on lems with the model presented in the ADA Restoration Act,” said Alvarez. “Th ere may still be a willingness to listen to alternatives.” It’s not unusual for major legislative efforts to bring together leaders from multiple perspectives in private meetings.

Pimentel says the ADA Restoration Act will reward progressive employers, and he’s most concerned about extreme reactions to the legislation. “My biggest fear is that companies with good disability management efforts may shut down their return-to-work programs,” he said. That would be a huge mistake. “Employers with good ADA policies now will do well with their implementation under the ADA Restoration Act,” he said.

Alvarez foresees several specific impacts on employers by the ADA Restoration Act:

  • Employers will have to review all absence cases to see if they will become ADA-qualifying cases;
  • With more workers’ compensation cases coming under provisions of the re-tooled ADA, compliance will require greater interdisciplinary cooperation between Risk and HR personnel;
  • RTW programs will become even more important for compliance as well as cost-reduction;
  • Job-protected leave and intermittent leave will have greater protection, for part-time as well as full-time employees, and for less significant conditions or impairments;
  • ADA may now trump FMLA as a compliance concern for employers, aff ecting more employers (down to 15 employees) and more types of leave.

To locate your Senators and Rep. home pages for email: www.govtrack.us/congress/findyourreps.xpd

DMEC will keep members current on ADA Restoration Act developments.

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