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How to prepare for the ADA Amendments Act

12/18/08

In signing the Americans with Disabilities Amendments Act, President Bush broadened the spectrum under which employees are considered to be disabled and, in many respects, brought our country back to the drawing board regarding disability discrimination.

The new Amendments become effective on January 1, 2009, and make significant changes to the original ADA. The biggest changes being the definitions of what is a major life activity and what is considered to be a disability.

Employers must be aware and prepared for the ADA changes that will effect their business in the coming year. Top employment lawyers are predicting that:

  • Reasonable accommodation requests will become more frequent and complicated.
  • Disability discrimination charges and litigation will increase dramatically.
  • And, it will be difficult for courts to dismiss new discrimination cases without a jury’s decision.

Where the Supreme Court had given employers the advantage in past disability discrimination cases, the new Amendments gives that advantage back to the employees.

The ADA Amendments Act will affect many aspects of business including employment processes, accommodating employees with disabilities and compliance requirements.

Employers should take the following steps to prepare for the upcoming ADA changes:

  • Presume nothing. Assume that every employee is completely healthy and has no impairment of any type.
  • Assume all impairments are covered. When an employee comes to you claiming to have an impairment, always make the assumption that the impairment is qualified as a disability under the ADA Amendments Act. It is safer to assume that an employee’s disability is covered in the beginning, rather than trying to argue that it does not later.
  • Accommodate employee impairments. After an employee makes a claim, make all reasonable attempts to accommodate the employee’s impairment. Unless it creates an “undue hardship” that changes the nature of the business, employers must be accommodating.
  • Review and modify job descriptions. During litigation, an employer’s defense against a disability claim may likely rely on whether the disabled employee was qualified to perform the essential functions of his or her job. Write an accurate and detailed job description from the onset that clearly defines each position’s essential job functions.
  • Start ADA Amendments training. Employers and HR professionals should treat the ADA Amendments Act like it is an entirely new law. Train everyone involved in the hiring process, including HR and managers, to fully understand the ADA changes.
  • Examine policies. Destroy, modify or create disability policies that reflect the most recent ADA changes. If possible, it would be in your best interest to have these done before the Act goes into effect on the first of the year.
  • Be flexible. Be prepared to make modifications to your policies and procedures as the courts interpret the new Amendments. Like the original law, the impact of the new legislation will continue to evolve over time. Research the latest changes to ensure your business is protected.

The first step to compliance under the new ADA Amendments Act is understanding the ins and outs of the legislation. After the law goes into effect on January 1, 2009, it is up to you to stay on top of what will keep your business in full compliance.

If you’re looking for help managing employee accommodation requests, the ComplyRight ADA Administration System contains all the forms and information employers need to comply. Complete with forms, tip sheets and valuable best practice information, the system can help you manage any request.