Disabilities Law Changes May Affect Your Small Business

Congress has voted to approve changes in the Americans with Disabilities Act (ADA) to open up the definition of disabilities to include more people. The bill (H.R. 3195, or the ADA Amendments Act of 2008) has cleared both the House and Senate and is currently awaiting President Bush's approval.

Here is the background: The 1990 Americans with Disabilities Act prohibits employers from discriminating against employees who are disabled but who can otherwise perform the essential duties of the job. For example, a person who is in a wheelchair can be a bookkeeper. A person with diabetes can be a mechanical engineer. Employers must provide "reasonable accommodation" to these employees.

Since 1990, some employers have sought to limit the law by not including in the definition of "disabled" those employees whose disabilities are controlled. For example, a friend of mine has diabetes, which is considered a disability. But his diabetes in controlled by medication, so some companies might not consider him disabled and would not make accommodation for him. Even though his diabetes is controlled, there are still some times when he needs accommodation. The Supreme Court has upheld the strictest interpretations of the ADA, up to now. For example, one Texas case disallowed an employee with epilepsy to be considered disabled because his epilepsy was controlled by medication.

Congress wrote the new legislation in an effort to clarify its intent, which was to be inclusive. The new bill states: “The definition of disability in this act shall be construed in favor of broad coverage.” In other words, the bill says, any "mitigating" factors, such as prescription drugs, hearing aids, or artificial limbs should not release an employer from its responsibility to provide accommodation to the employee with a disability. For example, just because a diabetic is under control does not mean that he or she might not need accommodation at times.

You can see that, if the law were taken to the extreme, almost no one would be considered disabled.

So, how will the amended ADA provisions affect your small business? Probably not much.

• If you have fewer than 15 employees, you do not have to comply with the law in being required to provide reasonable accommodation.
  
  
• If you have 15 or more employees and you have been providing any of them with a certified disability the accommodation required, you probably won't be affected, either.
  
  
• If you have taken a disability case to court trying to get out of providing reasonable accommodation and you have won, you may see the case being re-considered. It's not clear whether these cases will be re-tried or "grandfathered."

It's really all about reasonableness. If you have treated your employees fairly and provided all disabled employees with reasonable accommodations, you are not going to be penalized.

I will give you more on this issue in future posts.