The draft “Diagnostic and Statistical Manual of Mental Disorders” contains proposals to expand the category of disabilities to include a number of disorders, including binge eating and pathological gambling. Some have taken that to mean that employers will have to accommodate such disorders, or face penalties under the ADA.

The truth: It’s unlikely, for at least two reasons:

• When psychiatry classifies some disorders as disabilities, that doesn’t automatically mean they’ll fall under qualified disorders under the ADA. In fact, some recognized mental disabilities are specifically excluded from ADA protection, such as compulsive theft and pyromania.
• The proposals are in draft form only, and the psychiatry association has three years to field and incorporate public comment into the proposals. So, nothing will happen prior to 2013, and there could be a host of changes by then.

The Department of Labor has set up a new Web site, www.disability.gov, to help employers and employees learn more about disability law.

The site includes information on recruiting disabled applicants and providing accommodations, as well as details about tax breaks available for employing people with disabilities.

There’s a section specifically aimed at small businesses.

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.”

Site name: The Job Accommodation Network (JAN)

URL: http://www.dol.gov/odep/pubs/fact/jan.htm

Who runs it: The U.S. Labor Department

What it provides: You’ll have to fight your way through about three paragraphs of government-speak, but the struggle is worth it for HR managers who want to learn more about employee disabilities and accommodations.

First, there’s an 800 number that hooks you up to a network of disability experts, such as vocational-rehab specialists or ergonomics advisors. Here’s the best part: After

encountering a brief “press 1 if …” menu, it took us less than a minute to get a real, live human being on the phone at midday on a Tuesday.

If you don’t like using the phone, the site has a bunch of links and tools for getting help with your questions about disability-accommodation planning.

For instance, there something called the “Accommodation Toolbox” Click on it and you’re whisked to a page, run by West Virginia University, that provides further links to publications and other information broken down by type of disability – from Attention-Deficit Disorder to Wheelchair Use.

All in all, your tax dollars seem to be getting a bargain here.