Stuart Katz still remembers the apprehension the original Americans with Disabilities Act caused in corporate offices, shortly after the ADA debuted in 1990 and Katz joined the law firm of Cohen & Wolf P.C.
“Employers were really nervous,” said Katz, who chairs the firm”™s employment law practice in Bridgeport. “Nobody knew what it was going to become or how it was going to be enforced.”
Fear, uncertainty and doubt are again the watchwords in human resources departments, after President Bush signed the ADA Amendments Act of 2008. As of January, employers with at least 15 workers face an expanded definition of workplace disabilities that may force some to make changes or face potential legal liability.
The statute includes a lengthy, itemized list of disabilities that can impact cognitive skills, physical capabilities and biological functions if they impact a worker for more than six months. The new law instructs employers to cover workers “to the maximum extent,” even if a disability is in a state of remission. What”™s more, save for vision aids such as eyeglasses, assistive devices can no longer be considered a mitigating tool lessening an employer”™s liability.
The law is designed in part to erase a crutch defense of employers over the years ”“ whether an employee in fact is disabled by an ailment, condition or injury. Fewer cases will be won by employers seeking to prove a person is not disabled, Katz said. Instead, employers may switch their defense to proving they regularly interacted with employees to remove any barriers to doing their jobs.
The original ADA act has not proven as burdensome on employers as they may have first feared, according to the Governor”™s Committee on the Employment of People with Disabilities. Nearly three in four employers reported that their employees with disabilities required no accommodations at all. Of those that provided assistive arrangements, half did it at no cost and 42 percent said they incurred a one-time cost of $600 on average.
Employers reported that employees with disabilities have better retention rates.Â
Still, on average in Connecticut a lawsuit is filed monthly pegged specifically to ADA claims, including cases against some of the most prominent companies in the region in the past few years. A New Jersey woman sued Stamford-based Pitney Bowes Inc., claiming a senior company executive failed to make accommodations for her secretarial position following surgery. A former General Electric Co. financial analyst, who has since moved to Turkey, filed an ADA suit claiming the company exacerbated her condition following her own surgery by discouraging her from standing up from her desk job and walking to alleviate pain.
And an Orange resident sued under ADA after injuring her ankle while working in the “kitting crib” of Sikorsky Aircraft Corp. in Stratford.
The Connecticut Commission on Human Rights and Opportunities recorded nearly 600 complaints of job-based discrimination due to physical or mental disabilities and disorders, a 10 percent increase between the 2007 and 2008 fiscal years ending June 30 and the highest case total since fiscal 2004.
Nationally, meanwhile, the federal Equal Employment Opportunity Commission received 17,700 complaints of ADA violations, the highest number received since 1998.
In half the instances, EEOC ruled that no reasonable cause existed for the complaint. In remaining cases that were settled or otherwise paid a benefit to plaintiffs, defendant employers paid out $54 million. Of nearly 50 specific conditions identified in legal actions, cancer patients received 5 percent of the payouts.
The takeaway for employers? More than before, employers must work with employees to come up with reasonable accommodations for employees with disabilities, according to attorneys at Pullman & Comley L.L.C. And it is critical that those accommodations are documented.
