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Disability accommodations prevail

Posted On: May. 1, 2018 12:00 AM CST

Disability accommodations prevail

The Americans with Disabilities Act Amendments Act of 2008 has resulted in more claims, but it has also changed the litigation landscape and led employers to focus more on accommodating workers instead of battling them over whether they are disabled.

The expansion of the definition of disabilities under the 1990 Americans with Disabilities Act in the 2008 legislation has resulted in at least some ADA-related claims being settled before litigation, observers say.

Some experts, however, say the legislation has also unreasonably expanded the definition of who is considered disabled.

The ADA Amendments Act of 2008 was signed into law by President George W. Bush in September 2008 and went into effect on Jan. 2, 2009. The U.S. Equal Employment Opportunity Commission issued final regulations in May 2011.

According to EEOC statistics, disability-related claims, which accounted for 20.4% of all charges filed with the agency in 2008, increased to 23% after the law took effect in fiscal year 2009, and to 30.2% of all claims in fiscal year 2017. The number of claims increased 38.6%, to 29,957, between 2008 and 2017.

Laurence Z. Lorber, senior counsel with Seyfarth Shaw L.L.P. in Washington, said he believes, however, that more cases are being resolved before litigation, and he has not seen any apparent increase in the levels of payments made to resolve them.

This is because the statute “made the definition of disability less legally technical,” he said. Previously, employers had a lot of legal technical defenses they could call upon that were recognized by the courts.

But with the broadened definition of disability, employers’ attitude is, “Why spend money on litigating when individuals’ accommodations are not that expensive?” he said.

And while companies may pay for the accommodations, they no longer pay back pay or litigation costs, he said.

“The law has really changed the way we approach these issues,” said Tasos C. Paindiris, principal with Jackson Lewis P.C. in Orlando, Florida. “You still have to look at the issue,” of disability “but that threshold is so much easier to pass, we focus more on the accommodation side of it. Employers are more focused on what accommodations can be made, which is a win-win because employees might get accommodation and the employer might avoid a claim.”

Richard R. Meneghello, a partner with Fisher & Phillips L.L.P. in Portland, Oregon, said employers are now “more apt to conduct an interactive process with their workers and not try to escape claims on technicalities before they turned into lawsuits.”

“I’ve just spent seven years as an in-house counsel for a big health care system, and … our perspective on disability issues really had to change, to really embrace a wide spectrum of medical conditions… and we’re certainly not alone,” said Dennis E. Westlind, an attorney with Bullard Law in Portland.

Katherine Dudley Helms, office managing shareholder with Ogletree, Deakins, Nash, Smoak & Stewart P.C. in Columbia, South Carolina, said, “I don’t know that I’ve seen a huge jump in the number of claims, and that probably is because the very nature of the amendments do focus on working out a reasonable accommodation, so employers are dealing with the issues earlier than they have been otherwise.”

Others, however, have a less sanguine view of the act’s impact.

Under the act, “it is easier for a plaintiff to show that he or she may be disabled, so cases are more inclined to go beyond the summary judgment stage than they have in the past,” said Kelly-Ann Cartwright, a partner with Holland & Knight L.L.P. in Miami.

While the act was intended to protect those with serious medical disabilities — and does so — “it also opens the door for more abuse by people who were not disabled as the law was originally intended,” said Andrew S. Hament, a partner with FordHarrison L.L.P. in Melbourne, Florida. “It’s very vague at this point” and “really seems to have no ending in terms of what it covers,” he added.

“The volume has gone up, but what we’ve also been seeing is, there’s been a shift in terms of the types of claims we’re seeing,” including medical marijuana-related and pregnancy discrimination claims, said Talene Megerian, New York-based national employment practices liability leader in Willis Towers Watson P.L.C.’s FINEX North America practice.

Marijuana’s legalization in some states “has opened up a whole other door of potential claims,” while issues also arise from pregnancy-related bed rest, miscarriages and nursing, among other factors, she said.

The advice on how to handle ADA Amendment Act issues “is pretty simple,” said Mr. Meneghello. “If you’re at the early stage of a situation involving a potential disciplinary process,” and there may be a disability, the employer should discuss with the worker whether there might be a reasonable accommodation.