Changes to the ADA and How They Will Affect Your Business

On September 25, 2008, Congress and the President amended the Americans With Disabilities Act (the “ADA”). The new amendments go into effect on January 1, 2009. THESE AMENDMENTS WILL AFFECT EVERY EMPLOYER WHO HAS AT LEAST 20 EMPLOYEES.

The 2008 amendments reverse a number of employer victories that have been won in recent years. Under the new amendments, more employees will be considered to be disabled under the ADA, and you, as the employer, will need to make reasonable accommodation to more of your employees.

Under the old law, many employees who claimed to have a disability were found not to be disabled. Under the amended law, many more employees will be able to claim a disability. As a few examples, an employee who cannot concentrate, who cannot think, who has trouble reading, who has trouble learning, or who has trouble communicating would now qualify as disabled. People with carpal tunnel syndrome, diabetes, hypertension, digestive problems, bowel problems, bladder control problems, and reproductive system problems may now be considered to be disabled.

Making the situation even worse for employers, the amended law requires that the disability be determined without considering any mitigating factors such as hearing aid, medications, and prosthetic devices. For example, any employee who is hard of hearing will be disabled even if his or her hearing aid could correct the problem. A person with diabetes will be disabled, even if he could take an insulin shot which would control his blood sugars. (The only exception that the new amendments provide is that you can consider the effect of ordinary eyeglasses and contact lenses to correct and mitigate a vision problem.)

WHAT SHOULD YOU DO?

We recommend that each employer who is subject to the Americans With Disabilities Act do each of the following:

• Review your employee handbook and/or manual to be sure that the language used is not in violation of the new amendments. Communicate any changes to all employees.
• Update each and every job description for the entire company, greatly expanding the list of essential functions associated with that job.
• Train your human resource staff and managers about these changes.
• We further recommend that every employer schedule a time to meet with us so that we can explain the impact that the new law will have upon your business and the best strategies for dealing with the changes to the new law. Please call Mark Reis to schedule an appointment (241-0400).