Master Builders of Iowa

While President Obama and John McCain were slugging it out on TV at town meetings and on Leno and Letterman, the Democratic congress gave us a taste of what is ahead. With little debate or fanfare, they gutted the Americans with Disabilities Act (ADA) and various Supreme Court and Federal cases. Congress was quickly in justifying these actions by stating “we did not like what the courts have done to the intent of the Act.”
Get used to this process. We are in the age of Speaker Pelosi and Senator Reid, which promises to be not near as much fun as the age of Aquarius was for me back in the 60s. I have my fears of President Obama, which are based on his lack of understanding and experience. In addition, I doubt he understands the vast scope of the paybacks his union allies expect. I do not question his intelligence, however. On the hand, with Pelosi, Reid, and Senator Franks leading congress, I have total fear of what they will do because of their super left wing bias and total lack of understanding of the repercussions of their action. I also doubt that President Obama can stop their freight train tactics on the numerous union payoff bills and employee social reform bills that will be coming, even if he is so inclined.

We now expect the secret ballot procedure to select union representation to go away. We also look for the no Project Labor Agreements (PLAs) on federally funded jobs to die quickly. Look for dual gates to be eliminated or restricted; for multi-employer pension reform; and bailing out the Detroit unions. Under this new environment, Labor lawyers will flourish while plaintiff’s lawyers will pop-up like mushrooms. In addition, defense lawyers will wring their hands all the way to the bank as they complain about how hard it is to win when the courts have a liberal bias.

The first ADA involved long debate and much negotiating. This time was not the case, however, as this vast change went through without any noise. In reality, the Republicans were more interested in trying to win an election and their fear of alienating disabled citizens made them sit still and watch this unbelievable change slide through like a hot knife through butter. Shame on them.

The new ADA will go into effect January 1, 2009 and the regulations from the Equal Employment Opportunity Commission (EEOC) will follow. Some 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 near-sighted 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.

By the way, have you heard the rumor that Pelosi and Reid are developing a new act? In is called Americans without Abilities Act. And I end quoting Senator Reid on the topic. “Mandatory non-performance raises to guarantee upward mobility without effort or performance will stimulate our economy plus enhance the damaged egos of many people without abilities... It’s about time the ordinary citizen has the protection that we in congress have enjoyed for years.” Senate leader Reid noted.