Employment Law This Week® – Special Edition: The ADA Turns 28

Episode 125: Week of July 30, 2018

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This week’s episode focuses on the Americans with Disabilities Act (ADA):

July 26, 2018, marked the 28th anniversary of the Americans with Disabilities Act (ADA), signed into law by President George H. W. Bush in 1990. The ADA was landmark legislation that changed the workplace radically for those with disabilities, and their colleagues, and created new obligations for businesses open to the public. Ted Kennedy, Jr., from Epstein Becker Green, has more:

“Since the ADA was passed, there have been many changes in the workplace. For many years, people with disabilities were not expected to go to work and earn a living. Now, all of a sudden, companies had an affirmative obligation to make a reasonable accommodation to people with disabilities who were able and willing to work.”

Joshua A. Stein, from Epstein Becker Green, adds:

“After the passage of the ADA Amendments Act in 2008, the law changed, and the EEOC issued regulations that told employers they needed to focus on the accommodation process more so than whether or not someone was disabled.”

That concept of accommodations ushered in a new regulatory regime for employers, one that is still evolving today. Here is Ted Kennedy, Jr., on the issue:

“When Congress passed the Americans with Disabilities Act, they left it to the agencies to try to interpret just what was, and what was not, disability discrimination. So, for example, the Department of Transportation, Housing and Urban Development, the Department of Justice, the Department of Labor, all had to issue regulations about how to interpret the Americans with Disabilities Act.”

Over time, those regulations and the federal government’s approach to implementing the ADA have been scrutinized and refined by the courts, to the extent that we’re now seeing a shift. Here is Josh Stein with more:

“I think the biggest challenge facing companies when it comes to the ADA in 2018 is the lack of federal guidance we're seeing from this administration. When, in the past, the Department of Justice or Congress would provide regulations, code provisions, and other things that would allow employers to have very clear senses of where they needed to go for ADA compliance, we're seeing an administration that doesn't do that. So, instead of having one national unified path to compliance, what we're now seeing is a lot of piecemeal, state-dependent, litigation-dependent decisions, which creates a much harder compliance field for an employer to navigate.”

Even though we’ve seen a reduction in funding at the federal level for ADA enforcement, many states have fortified their disability discrimination efforts, so companies need to be extra vigilant to make sure they’re complying with state law relating to disability discrimination. Josh Stein elaborated on this:

“The biggest change since the ADA's inception when it comes to public accommodations is definitely the shift in focus from covering traditional ‘brick and mortar’ retail-type stores (hotels, museums, academic institutions) to moving on to cover technology (websites, touchscreen technology, and such). The ADA, traditionally ... operated in this context of somewhat of a building code, with very specific regulations. But now, as we move out of a traditional place of public accommodation into more cyberspace and technology, we're operating under a much broader civil rights spectrum.”

The regulatory regime that the ADA ushered in 28 years ago has certainly created some challenges for employers. But it also has presented companies with a generational opportunity to strengthen their workforce with a pool of talented employees who had been previously excluded from the workplace. Dr. Mark Boxer is Cigna’s Executive Vice President & Global Chief Information Officer. He spoke about how ADA compliance has evolved into a cultural imperative for the global health services company:

“So, the question is, ‘How do we as employers break down the barriers and make real progress in employing those with disabilities, and in the process promote the employment of highly talented, highly productive individuals?’ First, it starts with culture. By building and sharing best practices to break down barriers. Building that culture includes creating a policy and reviewing it on an ongoing basis. The next step involves reviewing job descriptions and hiring practices, focusing on a diverse slate of candidates. It's also important to train managers to recognize requests for an accommodation and work closely with the HR team to implement each of these steps. Finally, we must continue to follow up, to drive sustained change and recognize progress being made.”

Twenty-eight years after the ADA, disability law remains one of the most dynamic areas of the employment practice. Stay tuned to Employment Law This Week for new developments as state and local regulations are litigated in the courts.

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