This month marks the 28th Anniversary of the Americans with Disabilities Act, which was signed on July 26, 1990. In honor of this, I wanted to revisit a blog favorite on the ADA and the ADAAA. Enjoy!
The ADA Amendments Act (ADAAA) of 2008, effective Jan. 1, 2009, reversed two U.S. Supreme Court decisions that limited the definition of a covered “disability” and restricted the scope of who was protected by the Americans with Disabilities Act (ADA). The ADAAA expands the definition of the term “disability” and significantly increases the number of persons protected by the ADA. The stated goal of the ADAAA is to change the focus from who is protected to whether employers are complying with their obligations under the law.
A recent discussion with a human resources peer sparked these questions; Is the new ADAAA Act too broad and ambiguous to understand? Has it created an atmosphere where employers are now afraid to deal with any employee that is disabled?
Here’s the scenario. Your employee injures himself outside of the workplace resulting in him breaking his leg. He tells his employer that he can return to his job as an accountant as long as he is allowed to use a wheelchair. As his employer, you are uncomfortable and nervous about the employee returning with the possibility that he may injure himself. Not to mention that you are going to be uncomfortable if you need to deal with performance issues and discipline the now disabled employee. What do you do?
Well, there are basically two ways to handle this. You could tell the employee that they can not return to work until they have been released to full duty. Most employers prefer this method and justify this decision under the guise that they are protecting the company from liability. Basically following the train of thought that if the employee is not in the workplace, they can not be injured. Out of sight, out of mind.
Or, you can recognize that the new legislation significantly broadens who may be considered “disabled.” Since the definition of disability has been expanded, more employees will qualify for a reasonable accommodation. Furthermore, since disabled people are protected under the law, you and your company could be sued. So, you decide to interact with your employee and determine if a reasonable accommodation would meet both you and the employee’s needs. That is the right way.
Here’s the bottom line, and it is straightforward for most. Treat others how you would like to be treated. Would you want the opportunity to continue working to support your family if you suffered from a disability?
Well, this is a blog and not a white page, so let’s wrap it up. Points to know:
– Keep communication lines open! Discuss what reasonable accommodations would allow the employee to perform job duties.
– A safety concern is not a defense if a reasonable accommodation would eliminate or reduce the safety risk.
– Remember the Golden Rule! Treat the disabled employee, as you would want to be treated. We are all the “not yet, disabled.”