Uh-oh: New bill lets more employees sue
July 8, 2008 by Sam NarisiPosted in: Americans with Disabilities Act, Special Report
A bill amending the Americans with Disabilities Act was passed by a landslide in the House of Representatives and will get a vote in the Senate soon. The changes are going to have a big impact for Human Resources pros.
The ADA Amendments Act was passed in the House by a vote of 402-17. A similar bill is being considered in the Senate. Given its widespread support and overwhelming victory in the House, experts predict it’ll pass in the near future.
It used to be called The ADA Restoration Act, but was renamed after a compromise gutted some of the most extreme makeovers to the law. The new version still makes some big changes, though. Here’s what it’s going to do:
Definition of ‘disabled’
One of the bill’s goals is broadening the definition of who’s considered disabled. As under the current ADA, a disability would be any “physical or mental impairment that substantially limits one or more major life activities.”
But what’s a major life activity? The new bill includes a hefty, non-exhaustive list of examples: “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.”
A list of bodily functions that count as major life activities is included as well: “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”
The bill also says conditions that are episodic or in remission are always considered disabilities if they would limit a major life activity when active.
No mitigating measures
The amendments would also reverse a Supreme Court decision that allows the consideration of “mitigating measures” — i.e., medicine or equipment that lessens someone’s impairments — when deciding whether an employee is disabled.
In other words, if someone has a serious health condition but takes medicine to eliminate its effects, he or she might still get legal protection.
Under the new law, glasses and contact lenses are the only “devices” that can be considered.
Perceived disabilities
The bill contains a few changes to the protections for employees that are “regarded as” disabled. Most importantly, it forbids employers from discriminating against people they perceive to be impaired — even if the impairment wouldn’t substantially limit a major life activity.
In good news for HR, though, perceived impairments that are “transitory and minor” (i.e., lasting or expected to last less than six months) aren’t protected, and companies won’t be sued for failing to accommodate a perceived disability.
What now?
Those changes are scheduled to go into effect January 1, 2009.
What’s it mean for HR? Most importantly, more employees are going to be offered protection under the law. Now’s a good time to make sure managers are trained on how to accommodate disabled employees and avoid the appearance of disability discrimination.
We’ll keep you posted as the bill moves forward in the Senate.
Tags: ADA, ADA Amendments Act, ADA Restoration Act, Americans with Disabilities Act, House of Representatives, Senate
July 8th, 2008 at 12:22 pm
[...] Linda Edwards wrote an interesting post today onHere’s a quick excerptMost importantly, more employees are going to be offered protection under the law. Now’sa good time to make sure managers are trained on how to accommodate disabled employees and avoid the appearance of disability discrimination. … [...]
July 8th, 2008 at 12:44 pm
[...] HURFOM wrote an interesting post today onHere’s a quick excerptUnder the new law, a disability would be any “physical or mental impairment that substantially limits one or more major life activities.” So what’sa major life activity? The bill includes a hefty, non-exhaustive list of examples: … [...]
July 8th, 2008 at 1:15 pm
[...] unknown wrote an interesting post today onHere’s a quick excerptUnder the new law, a disability would be any “physical or mental impairment that substantially limits one or more major life activities.” So what’sa major life activity? The bill includes a hefty, non-exhaustive list of examples: … [...]
July 8th, 2008 at 3:19 pm
[...] Autism Vox wrote an interesting post today onHere’s a quick excerpt A bill amending the Americans with Disabilities Act was passed by a landslide in the House of Representatives and will get a vote in the Senate soon. The changes are going to have a big impact for Human Resources pros. The ADA Amendments Act was passed in the House by a vote of 402-17. A similar bill is being considered in the Senate. Given its widespread support and overwhelming victory in the House, experts predict it’ll pass in the near future. It used to be called The ADA Restoration A [...]
July 9th, 2008 at 12:17 pm
Pretty soon the ADA will cover a bad hair day.
The benefits of the ADA will be lost if so called advocates cause this legislation to become silly.
July 9th, 2008 at 1:18 pm
I tend to agree with Jack. Unfortunately our legal system needs a “re-vamp” instead of exsisting laws such as this. I am all for a disabled person to be able to work if a company can accomadate. When I was home the other day and watching day time television it was totally sad, all of the commercials were targeted to sue or apply for SSI. One list that a lawyer was posting “If you have one of the conditions and are unable to work….call me I can get you SSI” I started laughing because I had 4 of the 8 conditions listed, but I still work everyday!
As with anything else abuse of this legislation is bound to happen.
July 9th, 2008 at 1:23 pm
We are all considered disabled. We all go for periods of more than six months and have one or more of these. examples: “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.”
How stupid is this? As HR we see this everyday. I think when open enrollment comes along I may not be able to eat, sleep, think, concentrate, care for myself when I am knee deep in papers doing these manual tasks of entering in the enrollments. This will go on for at least 6 months because it takes me that long to get over it and by that time it’s open enrollment again.
July 9th, 2008 at 4:09 pm
Sorry this is off topic but as a professional writer you must please stop using the term “more (or most) importantly”! The word importantly is an adverb but is modifying no verb in your sentences! What you are attempting to convey is the implication: “[What is] more important…” or “[What is] most important. Thank you for letting me get that out!
July 9th, 2008 at 4:17 pm
But aren’t we all impaired in some way at some time in our life? This is getting to be crazy. I saw a state champion high school wrestler on The Best Damn Sports Show the other day. He had no arms or legs, but he was able to perform. He was on the show without his prothestics too.
July 9th, 2008 at 5:41 pm
As federal and state governments are scrambling to find more dollars just to cover current expenses, it appears this legislation is actually shifting the weight of the expenses of an aging population or disabled population from the government to the business community? While the “leaders” personally benefit by the appearance of being a defender of the disabled. I do believe there are people in our country that legitimately need and will benefit from the purposed changes in ADA. I also believe there are more people than not that will abuse their new found “rights” at the expense of the employer and the employer has little to no protection.
In this day and age of “I am entitled to and you owe me and I’m gonna do whatever it takes to get what I want” the purposed changes to the ADA are to broad and leave plenty of room for “interpretation”. Individuals won’t need to save for retirement any longer, employees can simply plan on suing their employer once one of their “impairments” keeps them from minimally performing their job responsibilities and the employer does not adequately accomodate their needs.
Minnesota is already painfully pro employee, making employers the bad guy and always in the position of selfdefense; proving the accusations are not true. The laws are set up to make employers pay dearly. Not just in court settlements, but in the documentation, training, remodeling work environments, buildings, shifting of work loads, all in the effort to accomodate the employees. Not to mention the cost of lost time in work productivity spent on defense and emotional toll going through potentially year plus court process. How much can the small businesses continue to bare? What new expenses are going to result from the broader ADA entitlements?
Are there any safe guards in the plan to help the employer for their loss of productivity, the decreasing staff morale/turnover as others must continue to carry the extra responsibilities of the minimal producer and the disruptions accomodating this exhaustive list of disabilities covered under the new ADA’s screams of? Any tax breaks? Any caps on settlement dollars in the event of a law suit? Many employers, big and small, are already struggling to break even, let alone make a profit. Many jobs are being lost and even more businesses will continue to cave in under the weight of the expenses. For a small business, just the cost of defending itself in personnel dispute can place the company finances in jeopardy and a huge lawsuit can bankrupt/close a company. Under the new guidelines, are the individual owners, managers etc also personnally liable?
The United States can no longer afford to continue making decisions that do not consider the greater long-term, wider outcome of its legislation. The initial short-term benefits of correcting a particular problem, meeting a special interest, strengthing a political career is costing billions of dollars that the US does not have available to spend. Our “leaders” need to be considering the bigger picture when creating new legislation. IE what other effects will there be? Do these changes make sense, how will compliance be monitored and by whom and at what cost, will they unintenionally increase our overall costs because all the possible outcomes were not explored, is this a benefit to the majority of the US population or does it meet the needs of a select or a small number of Americans at a large cost? Where is the money coming from to pay for the new legislation?
How about a proactive solution to the growing number these of these “disabilities”? Encourage self determination and personal responsibility of the individual. Encourage Americans to make healthy life choices, to be responsible for their own healthy well being? Instead our government guidelines continue to foster and financially support a system that encourages reliance on financial support from the government. Many people look at government money as an entitlement! These types of poorly outlined/defined changes in the ADA reinforces the idea that someone else will take care of me, so the motivation for self-control, for difficult task of health jeopardizing behaviors is not really a priority. In reality, so many of the disabilities we face as a nation are avoidable. Early Education and personal responsibility for self, are key to making changes. And like any good parent knows, it is necessary at times to say no, to make the child reap the rewards for their behavior.
Stop looking to businesses to be the parents of employees, stop looking at businesses to pick up these escalating costs, stop creating vague legislation with tunnel vision which is going to increase the burden on the already over loaded judicial system. “Leaders” Look at the long run, ripple effects these laws will have (intended or not). Usually anything that rushes through in a flurry through the House and Sentate is not well thought through and more for the politicial bang. The Senate needs to put the breaks on and look closely at the results of passing such a broad, far reaching change in the ADA.
July 9th, 2008 at 5:47 pm
I have to agree with EB. There are times in this job as an HR manager I can’t sleep, concentrate or function otherwise ( year-end payroll comes to mind). So, am I considered disabled at that time and does my employer have to accomadate me somehow?? A bed in my office might be nice.
There has to be a line drawn somewhere?
July 10th, 2008 at 8:17 am
I have to question how reproductive functions, though certainly life functions, should be encompassed in the ADA’s definition of disabled. If the statistics are true on the twenty-five E.D. commercials (ie. Viagra, etc.) aired an hour, America’s about to lose a substantial portion of its workforce.
Lady Ophelia I believe the proper phrasing would have been: “The word importantly is an adverb but it is not modifying any verbs in your sentences”
-Stu
July 10th, 2008 at 9:20 am
I think responses like Lady Ophelia shows that there is something wrong with our thinking, when a professional writer looks at only the context and not the contents of the messages trying to be delivered regarding HR issues.
This is exactly what we have with the politicians making laws that they know nothing about and do not have to regulate.
But Ophelia you were correct when you stated it is off the topic. Hopefully, our politicians will hire a good professional writer to get them out of the mess they are creating.
July 10th, 2008 at 3:34 pm
The extension of the ADA is depressing. Once again Congress is pandering and does not realize that the country is in a tailspin and needs all the productivity it can muster to bolster the shaky dollar. Congress is fiddling while the US is burning.
The only reasonable response is to throw the bums out!
July 11th, 2008 at 1:15 pm
Here, Here! for Diane!
July 14th, 2008 at 10:37 am
I am left wondering what issues arose under the original ADA laws that prompted these changes. Were people with mental illnesses being discriminated against?
July 14th, 2008 at 11:57 am
Donna,
They were not necessarily being discriminated against but it was harder to prove. A disability would be any “physical or mental impairment that substantially limits one or more major life activities.” This was the definition. I could be mentally impaired but I could still walk, talk, eat (these were some of the major life activities) and not be considered disabled. I may be a little slower but you may not notice it.
July 14th, 2008 at 12:43 pm
At a previous employer, we had an employee with extreme obsessive-compulsive disorder. We could always tell when he was off his meds, as he would spend his day picking up virtually invisible pieces of lint and trash from the floor. Our recourse was to tell him to start taking his meds, or he wouldn’t have a job. What now? And where do alcoholics and drug addicts fall? Under the old regs, they were only protected if they were in recovery. Shouldn’t that fall in that “on or off your meds” category too? The problem with Congressmen is that they have never had to deal with issues like these in real life. Maybe that would help…….. we should have the right to require our congressman to personally assist us when issues arise…………
August 6th, 2008 at 10:36 am
Maybe this is why so many businesses are outsourcing their labor and IT needs. It appears that too many american workers have the “I’m entiteled” attitude and the Government is enabling them. I find that no matter how flexible we try to be, someone always wants more and then everyone else does. How can you run a business if everyone is allowed to do what they want.?
August 7th, 2008 at 12:26 pm
A point that I haven’t seen others bring forward: we are at war.
There is a continually increasing number of disabled Americans entering the work force… or trying to. As a vet who was injured, I have seen first hand how hard it can be to obtain employment if somebody knows you are disabled; even when the disability applies only to your legs, and you are seeking a desk job.
I litterally went to dozens of interviews. Most employers tried to hide their glances at my cane, but even those did not do a great job of it. It wasn’t until the interview started that “guy on a cane” became “wartime veteran” in their minds - and the change in attitude was immediate, often resulting in them thanking me for my service. However, despite the fact that so many people portray themselves as pro-military, I did not receive a single call back from interviews that I used my cane.
Almost 2 months into my job search, I stopped using my cane during interview - increasing the dosage on my pain killers and muscle relaxers instead. The effect was immediate; most of the interviewers called for a second meeting. I cannot say that my current employer would (or would not) have hired me if I had used my cane, but it isn’t something I would bet on.
While the list of activities that the revision encompasses is considerable, not everybody comes back from war with visible scars. Walk around a veteran’s hospital, Walter Reed, or Fort Sam Houston and you will see soldiers, sailors, and airmen suffering from many (if not most) of the conditions covered by the examples.
Yes, it will get abused (everything else does). No, there is no way to prevent it. However, knowing what I went through, and what my fellow vets who are worse off than me are going to deal with, I am all for this law. The hard part is going to be getting a veteran to use it.