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Accomodating Disability in the Workplace

By Roy A. Banerjee and Fouad Kurdi Email By Roy A. Banerjee and Fouad Kurdi
January 2013
Accomodating Disability in the Workplace

New regulations in the federal laws relating to disability have changed the rules that companies must follow when an employee has a disability. Compounding the issue is the fact that as medical research advances, we are rapidly uncovering previously unknown health conditions. While new technology has helped physicians treat and detect physical disabilities, the diagnoses of mental disabilities have increased at an unprecedented rate. The tally of those who are so disabled by mental disorders that they qualify for Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI) rose nearly two and a half times from 1987 to 2007. The change is even more staggering for children, a group which has seen a 35-fold increase. The increase in mental disability diagnoses has not only affected families, but has also significantly impacted the employer-employee relationship. As the law tries to catch up to medical advancements, it is crucial to pay attention to the gap between what medicine considers to be a disability and how the law treats mental disabilities, particularly as it relates to the rights and responsibilities of both employers and employees.

What is a “Disability”?
A radical change took place for disabled workers’ rights with the passage of the Americans with Disabilities Act of 1990 (the “ADA”). The overall purpose of the ADA was to make American society more accessible to people with disabilities. Keep in mind that the ADA only applies to companies that employ 15 or more full-time employees.

The ADA addressed a wide range of issues affecting the disabled population, ranging from telecommunication assistance for the deaf to making trains and buses more accessible to individuals with disabilities. Though these new laws had a large effect on society, the new employment regulations included in the ADA were the most far-reaching. The ADA required employers to provide reasonable accommodations for employees with disabilities and prohibits discrimination on the basis of disability in all aspects of employment. Though passage of the ADA was hailed as a victory for equal employment rights, confusion (and much litigation) followed around the single most important inquiry related to the ADA: what is a disability?

Congressional Response
Amidst inconsistent enforcement of the ADA, much from the uncertainty stemming from the vague definition of disability, Congress enacted the Americans with Disability Amendments Act (the “Amendments”) in 2009. Prior to enactment of the Amendments, the ADA allowed employees to bring lawsuits against their employers if they could demonstrate that their employer perceived them to have a substantial, life-altering disability, regardless of whether the employee actually suffered from the disability or not. These requirements changed significantly when the Amendments were enacted. One of the most significant changes was that the Amendments expanded the coverage to individuals bringing ADA claims if their employer regarded them as having a disability, regardless of whether the employee actually suffered from one. The Amendments now only require that employees demonstrate that they were discriminated against because of an actual or perceived disability, regardless of whether it was substantial or not. The current law makes it far easier to be classified as disabled, because any perceived disability need not have to affect an employee’s life significantly. However, any perceived disability cannot be one that is “transitory or minor,” meaning that a common flu or sprained ankle will not provide an employee the protections of the law because they are not recognized as serious enough to prompt applicability of the ADA.

Practical Ways that Businesses Can Avoid Claims
Though the legal responsibility has certainly increased for businesses, three steps can be taken in order to avoid future claims. First, employers should not make assumptions or comments about employees’ medical conditions, which could lead an employee to believe that any employment decision made was based on their real or perceived disability, even if that is not the case. Secondly, employers must train their frontline supervisors and managers about what the new ADAAA regulations are, as these are the people who have the most contact with employees on a day-to-day basis. Lastly, documentation of all actions and decisions and why they were made can be very important if an employee alleges discrimination. These suggestions are not meant to be exhaustive, though they should provide a good start for an employer looking to avoid ADAAA trouble.

In order to avoid costly litigation, employees and employers should be aware of the uncertainty present and carefully review their current ADA and ADAAA policies and the respective procedures to be followed should a claim arise.

Roy A. Banerjee is a founding partner of KPPB Law. His practice is focused on business litigation and dispute resolution. Fouad Kurdi is a second year law student at Georgia State University and works as a law clerk at KPPB Law.

Business Insights is hosted by the Law Firm of Kumar, Prabhu, Patel & Banerjee, LLC. Disclaimer: This article is for general information purposes only, and does not constitute legal, tax, or other professional advice.

 


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