Know Your 'A's: FMLA & ADAAA
The Americans with Disabilities Act of 1990 (ADA) is a law that was enacted by the U.S. Congress in 1990. It was signed into law on July 26, 1990, by President George H.W. Bush, and later amended with changes effective January 1, 2009.
The ADA is a wide-ranging civil rights law that prohibits, under certain circumstances, discrimination based on disability. It affords similar protections against discrimination to Americans with disabilities as the Civil Rights Act of 1964, which made discrimination based on race, religion, sex, national origin, and other characteristics illegal. Disability is defined by the ADA as "a physical or mental impairment that substantially limits a major life activity." The determination of whether any particular condition is considered a disability is made on a case by case basis. Certain specific conditions are excluded as disabilities, such as current substance abuse and visual impairment which is correctable by prescription lenses.
The "original intent" of the law, as co-conceived by Lex Frieden and Mitchell J. Rappaport, was to create civil rights law protections for people with disabilities that would be permanent, would not be able to be reversed or weakened, and would prohibit all discrimination. It was also intended so that Americans with disabilities would be kept in the mainstream in terms of scientific and medical research and developments, especially opening future opportunities in Space exploration to them, as well as public policy changes, healthcare law and policy changes, and civil rights protections and public law changes for Americans with physical, mental and cognitive disabilities. It was intended to be a flexible set of laws that could only be strengthened, not weakened, by future case-law.
On September 25, 2008, President George W. Bush signed into law the ADA Amendments Act of 2008 (ADAAA). This was intended to give broader protections for disabled workers and "turn back the clock" on court rulings which Congress deemed too restrictive. The ADAAA includes a list of "major life activities."
In 2008, effective January 1, 2009, the ADAAA broadened the interpretations and added to the ADA examples of "major life activities" including, but not limited to, "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working" as well as the operation of several specified "major bodily functions." The Act overturns a 1999 U.S. Supreme Court case which held that an employee was not disabled if the impairment could be corrected by mitigating measures; it specifically provides that such impairment must be determined without considering such ameliorative measures. Another court restriction overturned is the interpretation that an impairment that substantially limits one major life activity must also limit others to be considered a disability.
The ADA has been a frequent target of criticism. For example, a common claim is that individuals who are diagnosed with one of the so-called "lesser disabilities" are being "accommodated" when they should not be. As one law review article pointed out, the perception that the ADA primarily helps freeloaders was harshly satirized by The Onion in 1998 in the form of an article about the "Americans With No Abilities Act." The fictional Act would have provided "benefits and protection for more than 135 million talentless Americans."
On the other hand, court decisions have made necessary "an individualized assessment to prove that an impairment is protected under the ADA. Therefore, the plaintiff must offer evidence that the extent of the limitation caused by the impairment is substantial in terms of his or her own experience;" a medical diagnosis or physician's declaration of disability is no longer enough. Even those who support the intent of the law worry that it might have unintended consequences. Among other arguments, supporters hypothesize that the Act creates additional legal risks for employers who then quietly avoid hiring people with disabilities to avoid this risk. And such researchers claim to have documented a sharp drop in employment among individuals with a disability after passage of the Act. Others believe that the law has been ineffectual.
The HRmeister: When an employee has a medical issue, regardless of his/her length of service, consult with an occupational health nurse and someone in your employee relations and/or general counsel. The ADAAA has broadened the definition of an impairment, such that you may need to accommodate it. Accommodation (depending on the impairment) may include time off (similar to FMLA, i.e., without any absenteeism consequences), more frequent work breaks, etc.
ADA accommodations oftentimes present challenges to line managers and HR business partners, who may otherwise be short-staffed, and struggling to maintain satisfactory service levels to their customers. The employees, themselves, particularly those who may be new to the organization, are challenged to 'keep up' when they may need to miss valuable classroom or on-the-job training.
The ADA also sometimes dovetails with FMLA, making it even more incumbent upon us to consult with the professionals, whom I've listed (above), to ensure that you are complying with these laws, protecting the rights of your employees, and mitigating risk for yourself and your organization. These can be difficult waters to both understand and navigate. Education and taking the appropriate actions are key.
- ^ a b c Americans with Disabilities Act of 1990
- ^ Pub.L. 101-336, 104 Stat. 327, enacted July 26, 1990, codified at 42 U.S.C. § 12101
- ^ "President Bush Signs ADA Changes into Law". HR.BLR.com. 2008-09-25. http://hr.blr.com/news.aspx?id=78926.
- ^ Civil Rights Act of 1964 Archived 14 November 2009 at WebCite
- ^ a b c "ADA Amendments Act (ADAAA)—What Employers Need to Know". HR.BLR.com. 2008. http://www.blr.com/information-ada/.
25. Gina M. Cook, "Article: When The Duty To Provide A Reasonable Accommodation Seems Unreasonable: Accommodating And Managing Employees With Episodic Impairments Or Impairments In Remission Under The ADA Amendments Act Of 2008," 32 N.C. Cent. L. Rev. 1 (2009).
26. Scott Dikkers and Robert Siegel, The Onion's Finest News Reporting, Vol. 1 (New York: Three Rivers Press, 2000), 155.
27. Anonymous, "Congress Passes Americans With No Abilities Act," The Onion, June 24, 1998.
28. Vierling, Lewis E. (January 2004). "Proving disability remains difficult". The Case Manager 15 (1): 25–29. DOI:10.1016/j.casemgr.2003.10.013. PMID 14961012. http://www.thecsmgr.com/article/PIIS1061925903003096/fulltext. Retrieved 2009-02-21.
29. (e.g., DeLeire, 2000; Acemoglu & Angrist, 2001)
30. (see Schwochau & Blanck for counter arguments)
31. (see Schall, 1998)