The Americans with Disabilities Act Amendments Act Clarified
Thanks to the people at the Jacksonville office of the labor law firm of Constangy, Brooks and Smith for the insightful breakfast briefing on the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). The most telling thing to come out of this session is the confirmation of my thoughts on the law that when the law goes into effect on January 1, 2009, every person in the United States of America now qualifies as a disabled person under the new definitions under the ADAAA.
The old standard of disabled is an individual who is “substantially limited” in a major life activity. This meant that the individual had to be limited significantly more than the general non-disabled population. The new standard is much more broadly interpreted and covers individuals who may have episodic impairments or impairments that are in remission. In these cases, employers must try to determine if these episodic events would be substantially limiting a major life activity when active. In addition, employees taking medication to control or ameliorate (lawyer word, not mine) their condition are to be considered disabled if the condition would substantially limit a major life activity if the employee were not taking the medication. Although most employers are not experts in the medical field, employers are now asked to determine how an employee would behave or act if the employee were not taking his or her medications.
Besides the obvious major life activities of caring for oneself, performing manual tasks, seeing, hearing, walking, talking, breathing, learning and working, the ADAAA has added eating, sleeping, standing, lifting, bending, reading, concentrating, thinking and communicating to its definition of major life activities. In addition major bodily functions have been added to the list as well which include immune system disorders, normal cell growth, digestive, bowel or bladder disorders as well as neurological, respiratory, circulatory, endocrine and reproductive ailments.
It is our firm belief that the Americans with Disabilities Act is a good law. Prior to 1990 when the law was passed, seeing an individual with a disability in the workplace was extremely rare. It is now common.
We have often said that the equal employment opportunity laws make us better managers. Making the assumption that everyone is a member of a protected class and treating employees with respect, dignity, fairness and consistency then there is less need to worry about the ramifications of employment decisions. With the enactment of the ADAAA, the development, communication and monitoring of performance standards becomes much more important.
The law requires that you make reasonable accommodations to qualified individuals with disabilities. This means that the employee or applicant must have the knowledge, skills abilities and experience necessary to do the job. There are other qualifications such as remaining calm under pressure and must be job related and necessary for the business to operate safely and efficiently. Defining the essential duties of the position as well as the marginal or non-essential functions of the job is also important when considering a reasonable accommodation.
These accommodations must be requested by the employee. Each request for an accommodation must be taken on its merits individually and need not be what the employee asked for. The accommodations are made to assist the disabled employee to meet production standards and the employer does not need to reduce production, quality, attendance or behavioral standards as an accommodation.
Concentrating on performance standards is the key to the success of your ongoing business. Many people make the mistake of trying to figure the person out and determining the reason for behavior or making assumptions about the treatment the employee is getting or not getting.
Focus on results and expectations. You will win every time.