The Americans with Disabilities Act Amendments Act (ADAAA) was signed into law on Sept. 25, 2008.
As stated in a previous HRTools.com Insight, employers should update their policies. The ADAAA significantly amends the Americans with Disabilities Act (ADA), which affects how employers evaluate ADA coverage and requests for reasonable accommodation. The ADAAA is a federal law that became effective on Jan. 1, 2009.
Many employers are asking, "What does all this mean?" Since the ADAAA broadened the definition of "disabled," the Act also affects how employers manage their workforces.
Complicated federal and state laws, such as this one with related amendments, can understandably overwhelm many employers.
In order for employers to prepare for and handle those related coverage and requests associated with the ADAAA, here is what I generally recommend (in addition to seeking more definitive guidance from Human Resources [HR] and/or legal counsel):
Develop a plan.
- Look at what modified work tasks are available.
- Determine what the organization can do in terms of making modifications.
- Review job descriptions.
- Identify essential duties associated with those jobs (for instance, lifting, bending, etc.)
- Train managers and supervisors so that everyone is on the same page and the organization stays in compliance.
- Evaluate what would be considered as undue hardships (for the employer). As explained in my previous Insight, unless an employer can show that it would suffer undue hardship, they must provide reasonable accommodation.
How do these changes affect an employer’s everyday decisions? The short answer is: in many ways.
For instance:
- If an employee requests time off, due to personal circumstances, I usually recommend that the employer grant the request. I further recommend that the employer not terminate the employee because, if they are deemed "disabled," then the employer is required to provide reasonable accommodation. Allowing the time off might be considered as the required accommodation.
- If an employer says, "The doctor says that Employee A cannot lift anything." Then, I normally suggest that the employer ask, "Well, what positions can you ask Employee A to fill? Are there any positions that will not require any lifting?" This example illustrates how an employer can make a reasonable accommodation for the individual, if there is an open position.
The interactive process is one in which the employer is demonstrating good faith. They are trying to arrange for—and/or make modifications that will allow for—reasonable accommodation for the disabled employee. This modification could simply take the form of shifting the employee’s work hours.
As a final note: Employers should be very careful about making assertions toward their employees. Under the ADA, employees can claim a failure to accommodate, if they can prove that an employer knew of physical or mental limitations.
In other words, employers want to avoid situations where they are regarding or treating individuals as disabled, because this action alone might lead to other areas of obligation. This is why it is important to consult with legal counsel or HR for more definitive guidance.
Again, because far more people now fall under the definition of "disabled," the ADAAA provides for a broader scope of protection for employees. Employers should be prepared to update their policies and to offer more accommodations.