May 21, 2008

Employers need to begin considering seriously the impact of a potential major expansion of employee protections under the Americans with Disabilities Act that has over 240 co-sponsors in the House. See proposed ADA Restoration Act H.R.3195 and S.1881. The House Education and Labor Committee, House Judiciary Committee and the Senate Health, Education, Labor and Pension Committee already have held hearings and more are expected soon.

As currently proposed, the ADA Restoration Act would redefine "disability" to include "a physical or mental impairment" or "a record of a physical or mental impairment" or "being regarded as having a physical or mental impairment." The bill effectively overrules several U.S. Supreme Court decisions that narrowed the scope of the ADA's protections. Individuals no longer would need to prove that impairments substantially limit one or more major life activities. Courts and employers also would be prohibited from considering the effects of mitigating measures (such as medication or devices) when determining whether individuals are disabled. The bill appears to shift the burden of proving whether an individual is qualified to perform a job from employee plaintiffs to employers.

In a letter presented to the House Education and Labor Committee during its January 29, 2008, hearing, the U.S. Justice Department opposed the ADA Restoration Act as written, stating the bill "would dramatically increase unnecessary litigation, create uncertainty in the workplace, and upset the balance struck by Congress in adopting the ADA."

How Would the ADA Restoration Act Impact Your Business?
Congress likely will hold additional hearings later this spring. As the debate over the ADA Restoration Act heats up, businesses would be well advised to educate Congress on the potential unintended consequences of the Act's passage. Employers should share with their Representatives and Senators real-life examples (without names of employees or applicants, of course) of challenges they have faced with ill or injured employees that would be protected as disabled and entitled to reasonable accommodations under the Restoration Act. Jackson Lewis is attempting to capture such experiences and intends to submit anecdotal information it receives to Congress. If you would like to share your experience(s) and the impact you expect the ADA Restoration Act will have on your business, please use our Proposed ADA Restoration Act Response Form.

Jackson Lewis' Corporate Counsel Conference to Focus on Disability Management
From April 23 to 25, Jackson Lewis will hold its 19th Annual Corporate Counsel Conference at the Bellagio Hotel and Casino in Las Vegas. Recognizing a critical need for employers to address employment law needs that flow from employee injuries and illnesses, this year's CCC will have a special focus on disability, leave and health management issues. This portion of our CCC will explore a wide range of topics, from the ADA Restoration Act to integrated disability management to family responsibilities discrimination. If you are interested in attending or want to learn more about this premier conference, click www.jacksonlewis.com/ccc or contact Michele Coletta at 212-545-4019.

For More Information Contact:

Francis P. Alvarez
Partner
White Plains Office
One North Broadway
15th Floor
White Plains, NY 10601
Email: [email protected]
Phone: (914) 514-6149
Fax: (914) 328-1882

Joseph J. Lynett
Associate
White Plains Office
One North Broadway
15th Floor
White Plains, NY 10601
Email: [email protected]
Phone: (914) 328-0404
Fax: (914) 328-1882

© 2007 Jackson Lewis LLP.  Reprinted with permission.  Originally published at www.jacksonlewis.com.  Jackson Lewis LLP is a national workplace law firm with offices nationwide