Senate Approves Legislation to Expand Workplace Disability Law

By Staff Report

Sep. 11, 2008

A bill that would expand workplace protections for disabled Americans gained unanimous Senate approval on Thursday, September 11.

The legislation, which was co-sponsored by 77 senators, sailed through on a voice vote. Both presidential nominees, Sens. John McCain, R-Arizona, and Barack Obama, D-Illinois, came out in support of the bill weeks ago.

The measure clarifies that Congress meant for the Americans with Disabilities Act to be broadly interpreted. The original measure, which became law in the early 1990s, required employers to make accommodations for disabled employees.

The new bill, the ADA Amendments Act, addresses Supreme Court decisions that critics say restricted the law. The court ruled in several cases that mitigating measures—such as medication or prosthesis—make a person ineligible for coverage.

In an unusual show of cooperation, disability advocates and the business lobby compromised on the final bill, ensuring broad support on Capitol Hill. In late June, the House approved a similar bill, 402-17.

“This was a slam-dunk,” said Keith Smith, director of employment and labor policy at the National Association of Manufacturers. “The biggest hurdle was the Senate calendar.”

Congress returned from its August recess on Monday and will be in session until late September, when it will take another break to allow members to go home and campaign.

It’s not clear whether all legislative business will be concluded by October, but the window is closing quickly.

Both the House and Senate versions of the ADA bill reiterate that the definition of a disability is a physical or mental impairment that “substantially limits” one or more major life activities. They also increase the number of activities covered, add a category of bodily functions and allow workers to sue if they are “regarded as” disabled.

The House bill defines “substantially limits” as “materially restricts.” In an effort to garner more support, the Senate avoids such sharpening of the language.

“Instead, the bill takes several specific and general steps that, individually and in combination, direct courts toward a more generous meaning and application of the definition,” Sen. Tom Harkin, D-Iowa, said in a Congressional Record statement in July.

Differences between the House and Senate bills won’t slow down the measure, Smith said. He anticipates that the House will take up and pass the Senate measure, bypassing the need for a conference committee.

“This is a high priority for [House Majority Leader Steny] Hoyer,” Smith said. Hoyer, D-Maryland, is the author of the House bill.

The White House has not indicated its position on the bill, but a veto is unlikely.

In addition to NAM, the Society for Human Resource Management and the U.S. Chamber of Commerce were among the business groups that participated in a coalition with disability advocates to push the bill through Congress.

As is the case with any compromise, no one was completely satisfied. The business community accepted a bill that could increase litigation. But the final language was less expansive than that contained in the original bill.

The lack of a specific definition of “substantially limits,” however, could require courts to step in again.

“At the center of the continuum, the question [of who is disabled] is probably straightforward,” said Neil Abramson, a partner at the law firm Proskauer Rose in New York.

“At the margins, it’s more difficult. That will probably generate, at least in the beginning, litigation,” he said.

HR departments will have to be fastidious about ensuring that language in employee files pertains only to performance so that it doesn’t become fodder for disability lawsuits.

“It’s going to require a fairly diligent HR function,” Abramson said. “The nuances are fairly complicated and will be fairly significant as this plays out.”

—Mark Schoeff Jr.

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