Add ADA amendments to your compliance list

In case you're about to run out of challenges, here's an item to add to your better-think-about-this list: Amendments to the Americans with Disabilities Act, signed into law last month, make potentially significant changes in how employers must treat employees with disabilities.

The biggest change, according to employment law attorney Gary Wincek, is that ADA litigation likely "will focus on whether an employer adequately accommodated an employee, rather than on the employee's medical condition."

Employers will have to be more flexible.

"You may have to consider a change in (an employee's) shift, work location and duties," Wincek says. "You can't say, 'I won't consider (these types of) accommodations.'"

Wincek is a partner in the Chicago law firm of Laner Muchin Dombrow Becker Levin and Tominberg Ltd. One of the top employment law firms nationally, Laner Muchin serves a number of smaller businesses.

Also high on the list of changes is an expansion of the list of major life activities that help define an individual's disability. The amendments extend the definition to include such activities as "seeing, hearing, thinking (and) walking."

Because the legislation is an undoing of many U. S. Supreme Court decisions that had narrowed the definition of disability since the original legislation was passed in 1990, the amendments "will make it easier for employees to bring ADA claims," Wincek says.

In fact, the amendments state that the definition of disability "shall be construed in favor of broad coverage of individuals. . to the maximum extent permitted," Wincek says.

Assuming Wincek's analysis is correct, the amendments would seem to be a positive for disabled workers but a challenge for employers who, for example, perhaps must be more willing to make more accommodations for workers.

There is time to prepare, however. The new legislation doesn't take effect until January 1, 2009, and implementing regulations, which will come from the Equal Employment Opportunities Commission, are yet to be written.

That means, Wincek says, business owners can get some plans in place. In particular, he says, "You want to be prepared to immediately train your managers and HR people" to be aware of the scope of the new rules.

For example, Wincek notes that an employer seeking to terminate a poorly performing employee who, it turns out, suffers from sleep apnea may be dealing with an employee with a disability.

The employer, Wincek says, "will have to analyze the reasons for the employee's poor performance - and (perhaps) make a change in work hours."

Like many federal mandates, the new ADA rules apply to businesses with 15 or more employees. The numbers don't align exactly, but, according to data from the U.S. Small Business Administration, nearly all businesses in Illinois will be affected.

Questions, comments to Jim Kendall, JKendall@121MarketingResources.com.

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