Expansion of American Disability Law Now Looks Likely

Business groups say that the planned legislation goes way too far.

By Martha Lynn Craver, Associate Editor, The Kiplinger Letter

January 24, 2008

Employers should brace for an expansion of the Americans with Disabilities Act. A bipartisan group of lawmakers is pushing a bill that would broaden the reach of the ADA, the landmark 1990 federal law that prohibits discrimination against the disabled. Current law applies only to disabilities that "substantially limit a major life activity." Proposed legislation eliminates this qualifier, with the result that anyone with a physical or mental impairment would be covered.

Business groups complain that the proposed change, as drafted, would apply to almost everyone because it would not let employers take into account whether a condition was mitigated by measures such as medication or eyeglasses when deciding whether someone requesting accommodation has a disability. "If you are not perfect, you would be covered by the law. Since nobody is perfect, everybody is covered. It's absurd," says Camille Olson, an attorney with Seyfarth Shaw in Chicago. Employers will find themselves dealing with requests for accommodation from workers with the flu, poison ivy, ankle sprains, stomachaches, toothaches and myriad other medical conditions that go far beyond any reasonable concept of disability, says Olson.

Another problem, say employer groups, is that the bill would shift the burden of proof from plaintiffs to employers regarding whether an individual is "qualified" to perform a job. "This bill will make it far easier to have class action lawsuits on a wide array of disability-related issues," says Lawrence Lorber, an attorney with Proskauer Rose in Washington, D.C.

Proponents say the bill is designed to clarify the original intent of Congress, which was called into question by a series of court cases that took a stringent view of disability. "Many individuals who Congress intended to protect under the ADA, including people with epilepsy, diabetes and cancer, are no longer protected as a result of these court decisions," says Sen. Tom Harkin (D-IA), sponsor of the Senate bill. "These cases have created a bizarre catch-22 where people with serious conditions like epilepsy or diabetes could be forced to choose between treating their conditions and forfeiting their protections under the ADA, or not treating their conditions and being protected. That is not what Congress intended," says Harkin, who is cosponsoring the bill with Sens. Edward Kennedy (D-MA) and Arlen Specter (R-PA). Reps. Steny Hoyer (D-MD) and James Sensenbrenner (R-WI) are sponsoring a similar bill in the House.

Businesses can't count on a veto by President Bush to stop the measure. The original ADA was part of his father's legacy, and he may be reluctant to block an expansion. But the president, with backing from Senate Republicans, is likely to push for changes to make the legislation less onerous to employers. One possible compromise would include adding a list of diseases and conditions that would be covered by the ADA. It would not be an exhaustive list, but one designed to limit the scope of the bill.

Because of the short legislative calendar this election year, the bill may not make it through Congress in 2008. If it doesn't, it's a good bet for 2009. And if Democrats win the White House and expand their majorities in the House and Senate, the eventual bill will be tougher on employers than if Republicans can force a compromise this year.

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