This chart represents a visual reference to see how many complaints were filed under the ADA from 2002-2006.It covers a broad spectrum of impairments from physical disabilities (back and extremities) as well as a large portion of files claimed under Emotional and Psychiatric reasons.The biggest piece includes “Other” – 30% or 62,000.Even with all these complaints filed, understand that the courts were ruling in favor of the employer in 90% of the ADA cases.
This is a recap of some of the points we have touched on regarding how the law has changed.After the enactment of the original ADA, court rulings were creating a very high standard for proving the disability.Now this standard has been lowered.Before, if mitigating measures were used, a person was considered as not being disabled, as we found from the rulings in the prior court cases. In the ADA Amendment, mitigating measures are not considered when evaluating a disability.
Lastly, an employer will be expected to have a much higher duty to accommodate their applicants/employees due to the stricter interpretation of the law.
The following are some action steps you can take in your company.Review your job descriptions.Make sure to recognize the necessary knowledge, skills and abilities required to perform a job and make sure job descriptions accurately reflect that.As an employer the essential functions of a job are your judgment. Having a prepared, written description of a position, can be considered evidence of the essential job functions.Engage in an interactive process. Once you have made a reasonable accommodation, follow up. You know there is a disability, so be sure the employee is fully accommodated to perform the work comfortably.The interactive process is ongoing;If an individual has cancer and is in remission this does not mean you stop engaging in the process, make sure you see whatever is available to accommodate them.Review your current policy and procedures to assure compliance with the revised ADA. If you have a policy or handbook that states the law, make sure you have the amended law in there.
‘Food for thought’ for you to consider moving forward. Could the ADA Amendment have a greater impact than what we have already discussed?Congress made it clear they were unhappy with Supreme Court rulings against employees. Could this have impact on future lawsuits? Do you think other previous ADA cases may be overturned in light of the new, broadened disability definition?Will Congress look at broadening other definitions in other legislation that may currently be interpreted to narrowly?That is all to be determined, as legislation is ever changing.