The ADA Amendments Act recently signed by President Bush contains some confusing demands for HR managers and their employers. The Equal Employment Opportunity Commission has admitted that and is offering guidelines to help you cut through the confusion. 

The EEOC offers the guidance in the form of a new publication, “The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities.”

The guide is broken down into nine major sections that help HR and frontline supervisors apply the regulations in real-life situations:

• Performance standards
• Conduct standards
• Questions pertaining to both performance and conduct issues
• Seeking medical information when there are performance or conduct problems
• Attendance issues
• Dress codes
• Alcoholism and illegal use of drugs
• Confidentiality issues arising from granting reasonable accommodation to avoid performance or conduct problems
• Legal enforcement

The main message of the guide is for supervisors who mistakenly believe that disabled employees get some sort of “pass” on conduct and performance — when, in fact, they should be held to the same standards as any other employees.

And the guide offers some to-the-point information on:

• Defining a “disability”
• Setting qualification standards
• What’s a “reasonable accommodation”

After a series of U.S. Supreme Court rulings that tightened the definitions of “disabled” in the workplace, the U.S. Senate fired back with a law that expanded the definitions — and expanded the potential for employee lawsuits. 

The proposal is called the ADA Amendments Act. It was passed by the U.S. House earlier this year, by a vote of 402-17, and all indications are that President Bush will sign it into law, effective Jan. 1, especially since the bill sailed through the Senate with a voice vote and no dissent.

Here are the main changes to existing law and court rulings:

• The Supreme Court had ruled that so-called “mitigating measures” used by a disabled employee — such as medications or prosthetics — would take the employee out of the official category of “disabled.” In other words, the employer would not have to make disability accommodations for that employee. The new law changes all that. Employers will have to make accommodations and treat as disabled any applicant or employee who qualifies as such, without regard to mitigating measures.
• The original Americans with Disabilites Act and the Supreme Court defined limitations on a narrow list of “major life activities” that could qualify someone as “disabled” for the purposes of employment.  The range of major life activities listed in the act take in: performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.

The text of the bill goes so far as to cite the court decisions the new law is designed to overrule.

Specifically, the new legislation will overturn three 1999 High Court decisions: Sutton v. United Air Lines, Murphy v. UPS and Albertson’s, Inc., v. Kirkingburg.

Those are the cases where the court ruled that the determination of whether an individual has a “substantial impairment” must be made while taking into account the use of any medications, eyeglasses, hearing aids or other corrective measures.

The new law also addresses the 2002 case of Toyota v. Williams, in which the Court defined the term “substantially limits” to mean “considerable” or “to a large degree,” precluding impairments that interfere in only a minor way with performing tasks from coverage under the ADA.

The House version of the bill defined “substantially limits” to mean “materially restricts,” lowering the burden for proving the existence of a disability. The Senate version doesn’t contain the “materially restricts” language, but it too would overturn Williams. The definition of a “limitation” is the area that most legal experts see as ripe for lawsuits, especially if companies play hardball with employees who complain about what they perceive as a disability.

What now?
Several legal experts say employers can improve their chances of escaping lawsuits by taking a reasonable approach.

For instance, in an interview with Lawyers Weekly, Christy Hubbard, a partner in the Phoenix office of Lewis and Roca, said employers who have followed the ADA won’t have to overhaul their policies, but simply retune them and “retrain their managers to think more broadly in terms of what a disability may be.”

Employers also need to take action to avoid workplace tensions that can develop when some workers are given accommodations while others aren’t. “It is human nature to distrust things we have not ourselves experienced, and so a person who has never had severe back trouble, such as sciatica, may believe the person is ‘faking it’ or is just lazy,” Hubbard said. “To prevent harassment and retaliation … companies need to identify these types of issues early on. It is not in anyone’s best interest to let the lack of a $50 chair or some overzealous bravado cause a million-dollar lawsuit.”