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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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POSTED BY: Theresa (January 26, 2008 11:53 AM)
I have Muscular Dystrophy, Recessive Generalized Myotonia Congenita, RGMy.
Compromise and balance is the key. Add to the list of covered disabilities. Rely on the medical community to be reasonable about abilities and there consequences.
I am frustrated by the 'pre-existing condition' clause used to exclude people with things that are congenital.
Like being excluded from certain insurances. Tom Harkin stop playing politics, get with the people to see reality.
POSTED BY: Bert (January 29, 2008 07:11 AM)
Just another payoff to the ABA whose members make millions from such legislation. We keep driving jobs offshore and the have to listen to politicians lament the loss of jobs to China and other countries without ADA protections and a bevy of rich lawyers buying TV airtime trying to get people to sue.
POSTED BY: Pete (February 06, 2008 05:15 AM)
The comments posted opposing this bill actually complain and favor repeal of the ADA, passed with broad bipartisan support including conservatives George H. W. Bush, Bob Dole, Phil Gramm, Newt Gingrich, etc., and court opinions having the effect of narrowing and undermining such broad bipartisan original intent, rather than offering any support for the unfounded allegation that the Restoraction Act would broaden such original intent. Do we need any more proof that unfounded stigma and unfair prejudice against qualified individuals with or perceived as having disabiilties, the problem intended to be addressed by the ADA, remains a real problem?
Why does the pending bill specifically address and seek to reverse a Supreme Court holding that may be right on its facts, but not address challenges to the constitutionality of Title II of the ADA covering state entities and a large part of Title I covering unfair employment discrimination?
I'm a retired employer and lawyer for small businesses, etc. Some ADA claims, and cases, and some objections to the ADA and defenses raised against claims under it, are indeed outrageous.
We need a good ADA Original Intent Restoration Act. Honest business people, and any honest Members of Congress, should get together, regardless of party, and pass one.
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