Shearer News for the Iowa Construction Industry

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 NEW AMERICANS WITH DISABILITIES ACT STARTED IN 2009

The new ADA went into effect January 1, 2009 and the regulations from the Equal Employment Opportunity Commission (EEOC) will follow smart business leaders need to prepare and plan for the tests ahead.

How were the old rules?

The ADA prohibited discrimination based on a disability. The term disability had the following definition:

1. Having a physical or mental impairment that “substantially limits a major life function” or
2. Being “regarded as impaired”

Over the years, the court’s decisions interpreted the “substantially limited” language to mean severely restricted or significantly restricted. In addition, the courts interpreted the “major life” language to require that the disability must prevent a function of central importance to daily life. The courts also allowed companies to consider mitigating measures in deciding if the employee had a covered disability. For example, if corrective
lenses, hearing aids, braces, medicine, diet, etc. could solve the problem, the employee was not disabled, nor covered by the act.

In addition, the courts had placed the burden of proving that the employee was “perceived as impaired” on the plaintiff. In addition, they had to prove that they were perceived as having a disability covered by the ADA, not just a physical limitation or physical problem.

What has changed? To sum the answer in a word: everything.

Definitions have changed and the term “major life function” now means: Caring for oneself; performing manual tasks; eating; sleeping; reading; concentrating; thinking; communicating; working. Major bodily functions, such as immune, digestive and reproductive systems, cell growth and neurological and brain functions are also stated
in the definition of a “major life function.”

Now, think for a minute of three illnesses or physical limitations that do not fit this definition. I cannot find three that won’t be deemed a disability under the new ADA. Our congress has again struck and assured companies of problems, bureaucratic agencies of work, and the law community with an annuity.

In addition, the act doesn’t include the concept that if someone had “mitigated” or solved the disabling limitation, that person could show ad non-disabled. This person, for example, who could control disabling fainting spells with medicine was deemed not disabled under the former act, but with under the new regulation, this person would be deemed disabled. In sum, the new act requires the determination of a disability be made
without regard to mitigating circumstances.

Since I wear hearing aids, I am now disabled under the Act. I can now tell my wife to stop yelling at an impaired person. However, the congress did generously allowed glasses and contacts to be considered, so nearsighted persons who resolve their problems with glasses are not disabled.

The “regarded as disabled” terminology was also changed to provide coverage whenever an employee was impacted adversely at work due to perceived recent impairment, even if the impairment was not a disability under the ADA. Does this mean the carpenter that is too obese to work in small areas is now perceived as disabled? How about the ironworker that is afraid of heights? How about the dyslexic crane operator?

For good measure, the act now clarified that it covers “episodic impairments.” This means if an employee has a limitation that is in remission, they are still disabled. This now covers lupus, epilepsy or seizure disorders.

As employers, what do we do next?

One option is to become a one-person operation and avoid employees. If this does not work, some steps can be taken in advance of the EEOC regulations:

1. Review and revise your handbook or policy dealing with ADA. The policy needs to comply with the new Act. I will try to get out a model form in the near future.
2. You might consider including a form that new employees can use to claim the need for accommodation. Be careful and give this out after they are hired and give it to everyone.
3. If you get medical certificates regarding any limiting factors, review them carefully.
4. Review all job function descriptions very carefully to make sure only essential functions are stated, but make sure they are all clearly stated.
5. If you have a training program for supervisors, include this in the program. Their uncool statements towards disabled employees can kill a case. I imagine controlling the mouth of the Ironworker to avoid nick names and name calling will be a simple task.

The regulations will take a while to develop and I assume they will be very extreme, so watch them carefully. You may need to adjust a lot of steps in your hiring and employee treatment programs.