Major changes to the Americans with Disabilities Act go into effect this year, and they will present major challenges to human resources professionals, according to Martin Dolan, partner, Dolan Griggs LLP, the Employment Law Group, Portland. Dolan was the featured speaker at the bimonthly Oregon Chapter meeting on Thursday, January 8.
“The Supreme Court hasn’t wanted to be a super HR department, but the new amendments to the Americans with Disabilities Act will force them to because Congress has made it clear it that it is interpreting the ADA in a different fashion than the courts have done to date,” Dolan said. “In effect, they told the courts, you’ve got it wrong, this is what we meant.”
“I called this workshop ‘change you can believe in’ because the the federal requirements will have to be interpreted in a fundamentally different way, and we will have to live with those changes so we might as well embrace them,” he said. The new approach means HR professionals will have to said “how can I help this person” instead of running away from the problem as most of the previous court decisions have seemed to suggest.
The amendments to the statute provide the same definition of a disability, but rather than narrowly interpret as the courts have done, the new law broadens the intrepretation and is to be “construed in favor of broad coverage to the maximum extent permitted.” The Equal Employment Opportunity Commission is directed to issue guidelines for clarification, as well assisting in determining what is a “material restriction” on a major live activity.
Mitigrating measures must be ignored under the new law when determining if a person is disabled. “Taken together with the broadened definition of disability, just about any employee who said he has an impairment will be considered disabled,” Dolan noted. HR professionals should hold on to the assumption that everyone is healthy as long as you can, but if it is obvious or known that a persona is disabled and/or needs reasonable accommodation, department managers, working in consultation with the HR staffs, have a duty to begin the interactive process to assess what accommodations may be possible. “If you have no reason to believe that a person is impaired, then you do not have duty to engage in the interactive process,” Dolan said, but noted this will be a troublesome area for HR professionals until guidance is provided.
He recommended HR staff become thoroughly familiar with the new requirements, including any guidance issued by the EEOC, and provide refresher training for staff to review job descriptions to make sure they truly and accurated reflect all essential job functions (”make sure there is no wiggle room”), employment policies and collective bargaining agreements related to fitness for duty examinations. The role of independent medical examiners should also be reviewed carefully.