The 'new' Americans with Disabilities Act: changes go into effect with the new year.

AuthorCummings, Judith
PositionHR MATTERS

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Dave Benson has worked for a national paint distributor for a couple years. He has a desk job at the main office, but what he really wants is a higher-paying sales job. The job involves travel within a day's drive from his home and Dave knows he is well qualified to sell the product. However, when he applies for the job, the employer refuses to promote him because Dave is diabetic. The employer is concerned that Dave could have some kind of a diabetic reaction while he is driving on company business and cause an accident. Does the employer violate the federal disability discrimination law when it refuses to promote him? It depends on whether Dave makes the complaint in 2008 or in 2009.

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In 2008, it is likely that the employer is not violating the federal disability discrimination law, the Americans with Disabilities Act (ADA) by refusing to promote. Under current court interpretations of the ADA, employers who find individuals like Dave "too disabled" to work certain jobs have grounds to take the position when charged with disability discrimination that such individuals are not in fact "disabled" at all, for purposes of the ADA. This is because that in order to get relief under the ADA, the employee or applicant needs to show that the disability meets the ADA definition.

Ever since the original ADA was passed in 1990, much of the litigation arising under the law has been focused on who is covered by the law. It is particularly important because coverage under the law triggers a right to receive "reasonable accommodations" from an employer or prospective employer in order to be selected or perform a job. In recent years, a number of court cases have significantly narrowed the definition of disability under the law, including holding that a person is not disabled by something like diabetes when medication and diet mitigate the impact of the diabetes.

CHANGES IN EFFECT

However there will be a significant change on Jan. 1, 2009, when the recently signed ADA Amendments Act of 2008 (ADAAA) takes effect. The ADAAA was signed into law on Sept. 25, 2008. One of the main goals of the ADAAA is to avoid the "Catch-22" people like Dave experience. Several statutory changes are intended to achieve this goal, a key one being a change in the manner and extent to which a person's physical or mental condition must impact their life in order for them to qualify as disabled.

Until Dec. 31, 2008, the issue of whether...

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