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Contact Information

4237 Salisbury Rd, Bld 1, Suite 112
Jacksonville, FL 32216

Phone: (904) 861-2903

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The Americans with Disabilities Act Amendments Act Clarified

Thanks to the people at the Jacksonville office of the labor law firm of Constangy, Brooks and Smith for the insightful breakfast briefing on the Americans with Disabilities Act Amendments Act of 2008 (ADAAA).  The most telling thing to come out of this session is the confirmation of my thoughts on the law that when the law goes into effect on January 1, 2009, every person in the United States of America now qualifies as a disabled person under the new definitions under the ADAAA. 

The old standard of disabled is an individual who is “substantially limited” in a major life activity.  This meant that the individual had to be limited significantly more than the general non-disabled population.  The new standard is much more broadly interpreted and covers individuals who may have episodic impairments or impairments that are in remission.  In these cases, employers must try to determine if these episodic events would be substantially limiting a major life activity when active.  In addition, employees taking medication to control or ameliorate (lawyer word, not mine) their condition are to be considered disabled if the condition would substantially limit a major life activity if the employee were not taking the medication.  Although most employers are not experts in the medical field, employers are now asked to determine how an employee would behave or act if the employee were not taking his or her medications. 

Besides the obvious major life activities of caring for oneself, performing manual tasks, seeing, hearing, walking, talking, breathing, learning and working, the ADAAA has added eating, sleeping, standing, lifting, bending, reading, concentrating, thinking and communicating to its definition of major life activities.  In addition major bodily functions have been added to the list as well which include immune system disorders, normal cell growth, digestive, bowel or bladder disorders as well as neurological, respiratory, circulatory, endocrine and reproductive ailments. 

It is our firm belief that the Americans with Disabilities Act is a good law.  Prior to 1990 when the law was passed, seeing an individual with a disability in the workplace was extremely rare.  It is now common.

We have often said that the equal employment opportunity laws make us better managers. Making the assumption that everyone is a member of a protected class and treating employees with respect, dignity, fairness and consistency then there is less need to worry about the ramifications of employment decisions.  With the enactment of the ADAAA, the development, communication and monitoring of performance standards becomes much more important. 

The law requires that you make reasonable accommodations to qualified individuals with disabilities.  This means that the employee or applicant must have the knowledge, skills abilities and experience necessary to do the job.  There are other qualifications such as remaining calm under pressure and must be job related and necessary for the business to operate safely and efficiently. Defining the essential duties of the position as well as the marginal or non-essential functions of the job is also important when considering a reasonable accommodation. 

These accommodations must be requested by the employee.  Each request for an accommodation must be taken on its merits individually and need not be what the employee asked for.  The accommodations are made to assist the disabled employee to meet production standards and the employer does not need to reduce production, quality, attendance or behavioral standards as an accommodation.

Concentrating on performance standards is the key to the success of your ongoing business.  Many people make the mistake of trying to figure the person out and determining the reason for behavior or making assumptions about the treatment the employee is getting or not getting. 

Focus on results and expectations. You will win every time. 


Thanks for reading the McKenzie Mailer.  Best wishes to you and your family for a safe, restful and happy Thanksgiving. 

Kind regards,

Bob McKenzie
President
McKenzieHR

potential@mckenziehr.com

 

October 2008
Effective Handbooks Save Time and Money
September 2008
Negating the Nattering Nabobs of Negativism
August 2008
What's Your People Plan
July 2008
Human Resources Strange But True People Stories
June 2008
HR Compliance Issues at the Forefront
May 2008
Performance Management Never Stops
April 2008
Don’t Make Tough Times Tougher
March 2008
What Ever Happened to the Personal Touch?
December 2007
It's That Time of Year Again
November 2007
HR Hot Topic #3 - Immigration
September 2007 -
HR Hot Topic #2 - Controlling the Cost of Medical Benefits
August 2007 -
HR Hot Topic #1 Recruitment and Retention
June 2007 -
Strategic Human Resources is Not an Oxymoron
May 2007 -
Is It Really a Hostile Work Environment?
April 2007 -
What happens after a new employee is hired?
March 2007 -
SHIFT HAPPENS
February 2007 -
Imagine
January 2007 -
Discrimination & Harassment
December 2006 -
ITíS BEEN A HECK OF A YEAR
October 2006 -
The Why Label Generation Y?
September 2006 -
The World of Recruitment Has Changed
August 2006 -
Keep Your "A" Players
July 2006 -
Traits of a High Performance Workplace
June 2006 -
Is a Mediocre Employee Better Than No Employee?
May 2006 -
The Compliance Vultures are Circling – Are You Prepared?
April 2006 -
Is Administrivia Keeping HR from Getting a Seat at the Table?
March 2006 -
Agreeing to Disagree or Avoiding the Subject
February 2006 -
Happy Valentine's Day
January 2006 -
Be a Talent Magnet and a Talent Utilizer