The rights of the disabled, and the ability of an employee to make a claim of disability in the workplace, were expanded on Jan. 1. The federal Americans with Disabilities Act (ADA) Amendments Act of 2008 affects businesses with 15 or more employees, although some cities—such as Sarasota—and counties have passed ordinances that extend fair employment requirements to smaller firms.

“Congress felt the Supreme Court had eroded the original intent and narrowed the scope of the definition of disability,” says labor and employment attorney Karen Morinelli. Morinelli, who was formerly employed with the Sarasota office of Ruden McClosky, has served as a fair employment conciliator on behalf of the city of Sarasota. She recently joined national labor and employment law firm Ogletree Deakins in Tampa.

A major change to the ADA is the broadening of the definition of a disability, an impairment that substantially limits one or more life activities, to include such activities as reading, bending, respiratory and circulatory functions and more. The mitigating impacts of medication or treatments, such as insulin taken by a diabetic, are now to be removed from consideration when an employer evaluates a disability. Conditions such as hypertension, epilepsy, obesity, carpal tunnel, diabetes, depression and mental retardation are covered, as are conditions in which the employee might be “regarded as” disabled and therefore suffer discrimination, such as a disfigurement.

Employers are required to offer equal opportunity in practices including recruitment, hiring, compensation, promotions, leave and training, and to provide “reasonable accommodation” so a disabled employee can perform a job for which he is otherwise qualified. The reasonable accommodation is determined through an interactive process with the employee. The accommodation, however, cannot cause the employer undue hardship.  

Both the Florida Commission on Human Relations and labor lawyers such as Morinelli expect more litigation in 2009 as the new regulations are tested in the courts. She offers the following tips to help employers get ahead of the new ADAAA guidelines and avoid litigation.

Navigating The ADAAA 

Update job descriptions. “Employers should reconsider going back to having detailed job descriptions so there’s no question as to whether an employee can do a job or not,” Morinelli says. “They should detail the physical and mental capacities that are required.”

Create or review written policies about how to deal with individual claims, and align them with the language of the new amendments. Determining how to accommodate a disability is an individualized, interactive process. But the corporate response, as well as anti-harassment policies and complaint procedures, should be addressed proactively.

Train supervisors and managers to recognize their obligation. Employees may communicate indirectly, Morinelli says, so it’s important to “train supervisors to watch out for when someone is telling you they are disabled. They may say they’ve been to the doctor and they have carpal tunnel.”

Involve the physician. Ask permission to work with the employee’s physician. Employers must be mindful of privacy laws relating to an employee’s medical condition, but involving a doctor can remove the substantive burden of determining an employee’s ability to perform. “Offer to send a job description to a doctor so they doctor can tell the employer what an employee can and can’t do,” Morinelli recommends.

Document the interactive process. “Under the new standards, we don’t have a lot of guidance yet,” Morinelli says. “It will take a few years before the new approach emerges, so it’s vital to act and to document your actions.”

Take every request or complaint seriously. If you have questions about ADAAA requirements, call the Florida Commission on Human Relations at (850) 488-7082 or visit fchr.state.fl.us.