The ADAAA: This Is As Messy As It Sounds

I sat in on a webinar yesterday about the Americans with Disabilities Act Amendmenst Act. Based on what I heard the ADAAA would be better renamed “Ninety-eight percent of your employees and candidates will be able to claim a disability” Act. The webinar was conduct by Seyfarth Shaw LLP on the final regulations put out by the EEOC regarding the ADAAA. These can be found in the Federal Register here.
While the final regulations may have provided badly needed clarification they also make it clear that the world of ADA has changed. Requirments of employers have changed. Defenses that have been used in the past are no longer valid. Defintions and terms have been greatly expanded to include more disabilities and to change the nature of the interaction with the employee or candidate claiming a disability.
Now I am not saying that the law is a bad law. Shoot I can get covered under this if I need too, but at the same time, looking at it from the perspective of the under staffed, under funded, and overworked HR department, this law with the final regulations is a real bear. If you work for a large company which employees a specialist or more, then you may be ok. But if you work for a company that has a small HR department you need to be prepared for a potential major change in your workload. This is especially true for organizations that employee a large number of aging baby-boomers.
I will probably spend several more posts talking about this issue, but the one area I wanted to concentrate on today is the “Interactive process.” The attorneys presenting has some interesting points they made about the process that is necessary when an accommodation is asked for. This process MUST involve ALOT of communication. Timing is important in this process as well. Failure to engage properly in the interactive process can be deemed to violated the requirement of providing a reasonable accommodation. Ignoring the issue does not make it go away. The presenters suggested the following:

  • Act promptly
  • NEVER say NEVER at the beginning of the conversation
  • Think outside the box on an accommodation. (My comment is: Also listen to the person with the disability, they may know best what works for them.)
  • Document, document, document and then document again.

I will be posting later on more about the final regulations. So stay tuned.

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