The American with Disabilities Act (ADA), enacted in 1990, was amended in 2008. The amendments to the ADA went into effect in 2009. Three years later, cases under the ADA as amended are now streaming through the court system. The impact of the ADA amendments is now becoming apparent. Recently, I attended a telephone conference regarding the current state of the ADA as amended. I wanted to take a moment and post some take a ways about the ADA and the current legal climate in this area.
A is for amendment. In the case of the ADA amendment, the “A” is about a lot more. The amendment was a specific response to the Supreme Court’s and other lower courts’ narrow view of the protections afforded under the ADA. The ADA Amendment expands and defines the reaches of the ADA to include more disabilities and hence a lot more people.
- For example, say an employee has diabetes, but their diabetes does not affect their daily activities, they may be covered under the ADA.
- Let say an employee has a seizure disorder, but they are on medication and have not had a seizure in 3 years, the employee may be covered by the ADA.
- Or maybe an employee was diagnosed with cancer and it has been in remission for 6 years, the employee by be covered by the ADA.
Under the ADA currently, if an employee [or applicant for employment] has a condition which affects a daily life activity or major bodily function they are covered under the ADA. They are covered even if the condition is not active and even if the condition is controlled by medication.
What can and what should you as employer?
- Engage with any employee that asks for accommodations or special considerations in the workplace. Courts are putting a real emphasis on if employers are working with employees to find solutions to issues in the workplace.
- Evaluate employee policies and practices to ensure special carve-outs for cases of disabilities. The courts have shown limited tolerance for “one size fits all” policies.
- Re-draft job descriptions and available job position postings to include rudimentary job requirements. Think of such things as coming to work, working on-site and not working from home, and the requirements of overtime. Make sure that the job requirements are actually things done in real life. If there is a requirement to work overtime, are other workers in the same position working overtime?