ADA amendments expand protections

REGION – If you haven't reviewed your employment practices lately, January may be a good time.

Local attorney Rachel Brochert Roe said it's critical that employers take a close look at their policies related to employee disabilities as the risk for legal liability is much greater now than before.

The Americans with Disabilities Act (ADA) is ringing in 2009 with some amendments to the nearly two-decade old federal statute. With these changes, more employees will qualify for disability workplace protections, which could result in more requests for accommodations to perform their jobs.

The ADA Amendments Act (ADAAA) "really clarified what the definition of 'disability' is," said Robert Barnes, director of human resources for the Grand Traverse Pavilions, a senior and intergenerational residential care facility. As it relates to a work setting, the statue only applies to organizations with at least 15 employees.

The ADA defines disability as an impairment that "substantially restricts a major life activity, such as walking, seeing and hearing. In the clarification, the scope of "major life activities" is vastly expanded. The list includes such things as caring for oneself, eating, sleeping, concentrating and thinking as well as immune, circulatory, endocrine and reproductive functions.

"We now have clarity, but we also have a lot to deal with," said Barnes.

The amendments also overturn some court decisions that have, over time, limited the ADA's coverage. Specifically, leaving people with conditions such as epilepsy, diabetes, HIV-AIDS and mental illness – in other words, disabilities that might not be as apparent – unprotected from discrimination. It also includes conditions that are episodic in nature and conditions in remission.

The amendments change the intent "from the threshold issue of disability to the primary issue of discrimination," said Steve Perdue, president of Grand Traverse Industries, a non-profit organization that provides training and employment services to persons with disabilities and other barriers to employment.

Perdue said in his 18 years in the Traverse City area he's seen a lot of people do their best to comply with the law, especially with providing accommodations to physical barriers. He did say the one area where he has seen some resistance is in effective communication with the deaf population, but not specifically in the workplace.

Roe, who specializes in business and employment law for the local office of Smith Haughey Rice & Roegge, said litigation will no longer center on determining whether someone is disabled or not.

"That's not an issue for litigation anymore," said Roe. "That defense is completely gone."

Now, Roe said, the questions from a legal perspective are: Was this person discriminated against because of a condition? Were they properly accommodated?" Or, if a person with a disability is part of a company downsizing, how is it proven that it wasn't because of the disability?

That's exactly why Barnes is doing a careful review of human resource practices at Grand Traverse Pavilions. He is beginning by training all managers on the ADA so they are "acutely aware" of what the statute means and developing protocols for consistency. He said he wants managers to "always contact human resources" whenever they have a situation that may involve the ADA.

Barnes is also reviewing employment applications and the interview process for compliancy and recently met with his labor law attorney to make sure the protocol for accommodation requests is compliant with the changes. At the same time, Barnes is also reviewing the job descriptions for every category to make sure they are in accordance with the essential functions of the position.

In the two years Barnes has been at the Pavilions, there hasn't been one accommodation request, he said, and before that only one in the previous 14 years.

"That's due in large part to the type of work," he said, which is very physical in nature. "We don't have a lot of people apply here that can't do that type of work. But, we may have current employees who previously didn't qualify under the ADA who could now because of the changes." BN