ADAAA: The true cost of disability accommodation under the new law

From 2 million to 6.1 million more employees could ask for disability accommodations in the next five years as a result of the recent pro-employee changes in the ADA, the EEOC estimates. The resulting accommodations could cost employers $60 million-$183 million annually, the EEOC says. These estimates came as part of the EEOC’s final regulations implementing the Americans With Disabilities Act Amendments Act (ADAAA).

The new law, like the original ADA, requires employers to try to find reasonable accommodations for employees with disabilities who can do their jobs if they have such accommodations. But because the ADAAA broadens the definition of what constitutes a protected disability, more employees are going to be making accommodation requests.

The new cost estimates are way higher than the original estimates of 160,000 accommodation requests costing $19 million-$38 million/year for five years. Explaining the new estimates, the EEOC noted:

• its original failure to account for certain impairments – such as autism, multiple sclerosis, and muscular dystrophy – and
• problems with government survey data it used in the first estimates. Bottom line: Under the new regs, it’s generally wiser to figure out a disability accommodation you can afford, than look for reasons to say “no.”

Why the changes?
Remember, when Congress passed the ADAAA in 2008, the aim was to get back to what lawmakers considered the original intent of the ADA, to broadly protect disabled employees and applicants against discrimination. Congress felt court decisions after the passage of the ADA in 1990 had whittled down these protections.

So in the ADAAA, Congress relaxed the standard employees have to meet to show they’re disabled, and thus entitled to protection from disability discrimination.

Likely consequence: More employees will get a lawyer if they feel they’ve suffered disability bias. To cite just one example: Now, if employees have mental or physical trouble with the vaguely defined activities of “concentrating” and “communicating,” they could be disabled.

What the ADAAA does Here are the ADAAA’s main changes:

• The EEOC disability standard, under which an employee has to prove a physical or mental limitation “significantly restricts” a major life activity, will be eased so the person only has to prove the condition “substantially limits” him or her. The change in wording is small, but lawyers see it as important.
• More activities are added to the list of major life activities that create disability when people can’t perform them. On top of previously defined activities like working, walking, speaking, seeing and hearing, the new law adds eating, sleeping, standing, lifting, bending, reading, thinking, concentrating, and communicating.
• A whole new category of major life activities is added. This is “major bodily functions,” which includes such things as:
  • Functions of the immune system
  • Cell growth
  • Digestive, bladder, and bowel functions
  • Neurological and brain functions
  • Respiratory and circulatory functions
  • Endocrine functions
  • Reproductive functions
• A health condition that amounts to a disability now counts as one even if the person is taking medicine or using a device that limits its impact. Examples would be an epileptic person who takes a drug to prevent seizures, or a deaf person who uses a hearing aid. Note: Poor vision that can be corrected with glasses or contacts DOES NOT count as a disability.
• Now, a medical condition may still qualify as a disability even if it’s episodic or in remission.
  Apart from redefining disability, the new law makes it easier for employees to sue under the “regarded as” section of the ADA. If you wrongly consider an employee or applicant as disabled when they’re not, they can sue – and win – even if the impairment that caused you to view them as disabled isn’t severe enough to amount to a real disability.

What HR can do
Savvy HR people will want to check your policies and make sure they reflect the current state of the law and the new regs.

You can also:
1. Stress the need for managers to avoid questions about mental or physical health in job interviews (although you can still, and should, ask this question: “Can you do this job with or without a reasonable accommodation?”).

2. Review job descriptions to ensure that elements of the job listed as essential functions are truly job-related and consistent with business necessity.

3. Reconsider past accommodation requests from current employees who were denied accommodation because it was determined that their impairment didn’t satisfy the ADA’s definition of a disability.

4. Emphasize with managers and supervisors the need to be proactive about accommodations. Now that the law has widened the pool of disabled employees, the danger of “failure to accommodate” lawsuits has gotten bigger. Managers should never immediately refuse an accommodation request or take action against the person for making it.

What’s reasonable?
Unfortunately, the new law doesn’t give any guidance as to what a reasonable accommodation looks like. So you’ll have to be extra careful to show good faith when discussing accommodations with individuals – although you can still deny one if it would wreak havoc or cost a mint. A good guideline: If an employee says his condition requires a change like a job transfer, physical rearrangement of his work station or shift change, managers can arrange a temporary accommodation if possible. Then they should bring the problem to HR.

And remember, if you do decide to refuse an accommodation – either because you don’t believe the employee is in fact disabled or because the accommodation would cause undue hardship to the business – be sure to have well drafted documentation of your non-discriminatory reason for the action. Also, document the steps you’ve taken – including consultation with the employee over possible accommodations – to arrive at the decision.