by Richard Pimentel
On July 26th 1990, the Americans with Disabilities Act was signed into law by President George Bush. It was historic legislation. It accomplished two things. One, it created a federal blanket covering what was then a patchwork of state, federal and local laws that protected individuals with disabilities. Two, it declared that individuals with disabilities had a right to be integrated into every aspect of our society.
The Americans with Disabilities Act is an extensive and complex piece of legislation. Even today the courts are still addressing such basic concepts as who is a Qualified Individual with a Disability and what are employers’ obligations to reasonably accommodate such a person. With significant court decisions still being made monthly, the Americans with Disabilities Act is best thought of as a work in progress. Therefore, this guide does not recommend specific Reasonable Accommodations or compliance options. Instead, this guide gives categories and examples of situations where ADA issues are raised and where further action on the part of your organization may be called for.
The element of the ADA that brings about the most criticism (and praise) is chiefly that it is non-specific about recommending appropriate actions. It is useful to perceive the ADA as a guide to a process of evaluation which, when applied to an individual, can help an organization to come up with a compliant solution given the uniqueness of each person with a disability and the uniqueness of each organization’s circumstances and resources.
The Americans with Disabilities Act differs from other “civil rights” legislation in that most civil rights law exists to ensure that every member of a protected class is treated no differently than any other member. However, persons with disabilities are by their very definition different from their non-disabled counterparts. They have a physical or mental impairment that significantly limits a major life activity.
This raises the sometimes-perplexing question, “How do we guarantee the same treatment to persons who really are different?” We do not provide special parking spaces for everyone. We do not provide sign language
interpreters for everyone. We do not allow everyone to bring their dog to work with them. The ADA seeks to achieve a goal that is more complex (and enigmatic) than simply mandating the same treatment for everyone. It tries to achieve the laudable goal of fairness by recognizing the differences in needs and abilities of persons with disabilities.
It is by this structured process of evaluation that nondiscrimination and accommodation is achieved. Each Organization has policies and procedures, and people responsible for working through this evaluation process. If there is a weak link in ADA compliance, it is not in the execution of this process but rather in the recognition that a situation exists that needs to be evaluated and considered. Accommodations can only be made when the need for the accommodation is recognized.
One of the most significant problems with Workers' Compensation and the Americans with Disabilities Act is the “rollover” effect of Workers' Compensation claims that eventually become ADA complaints. This is especially true for work-related stress claims. By recognizing potential cases and acting upon them early in the process, your organization can reduce these “rollover” claims and at the same time effectively bring injured employees back to work.
