ADA Changes For 2009 Broaden Definition of Disability

Dec 31, 2008
This article is part of a series called News & Trends.

Changes to the Americans with Disabilities Act that take effect New Year’s Day will broaden the scope of those covered and expand the very definition of disability. One of the country’s foremost employment and labor law firms says the “ADA Amendments Act will mean a massive change for most of the country’s employers.”

“More workers will be defined as disabled,” says Myra Creighton, partner in the Atlanta office of labor firm Fisher & Phillips. That will almost undoubtedly mean that more workers will be requesting some form of accommodation for their disability.

Where previously a diabetic or someone with ADD whose condition is controlled by medication was probably not disabled under the prevailing court decisions, now the amendments make clear that they probably are. The amendments loosen up the definition of disability and eliminate consideration of the effect of medication, prosthetics, hearing aids, and the like. That means a person is to be considered disabled whether or not any form of treatment or corrective device (with the exception of glasses and contacts) is used to control or ameliorate the condition.

However, for recruiters and hiring managers, the impact is likely to be more subtle.

Changes may need to be made to job descriptions and in the application and interview environment. There is some thinking that the nature of the post-offer, pre-employment physical will have to be altered to disregard the effect of medical mitigation.

“People ought to have better job descriptions,” counsels Creighton. Most descriptions already take into account the physical requirements of a job, such as the ability to lift certain weights. But too few, says Creighton, take into account the mental and emotional requirements.

“A lot leave out the mental demands that some jobs make,” she says, pointing to supervisory positions where a manager has to relate to employees. Certain types of mental conditions can negatively affect the performance of a supervisor.

She also suggested that more job candidates may now be eligible to request an accommodation in the interview process. Those employment kiosks so popular in home improvement centers, large retailers, and others might have to be modified or alternatives offered to accommodate candidates who request them.

In fact, in a December webcast, the Association of Corporate Counsel used the example of a candidate with ADD requesting a quiet place to fill out a job application. “Do you have to accommodate?” the presenters asked. The answer is yes.

But how many on-site managers know that — or how — an accommodation is to be made?

Creighton says all the old rules about what questions can and can’t be asked during the hiring process still apply. “Those haven’t changed.”

Now, because more candidates can be considered disabled and partially because jobs are tight, Creighton urges recruiters to be especially vigilant about ensuring every question they ask and every requirement in the job description is directly related to business necessity.

While there “aren’t a ton of failure-to-hire cases,” Creighton says, “Some people may view this (the ADA amendments) as an opportunity.”

This article is part of a series called News & Trends.
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