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New legislation should give employers cause for concern.

Beginning next July, employers with more than 25 workers will be required to comply with the new federal Americans with Disabilities Act (ADA).

ADA changes much existing law and, most importantly, mandates that employers take certain affirmative steps. Wide in scope, the act introduces new concepts into discrimination law-concepts that do far more than require wheelchair accessibility. But how much more remains to be seen.

Under other anti-discrimination acts, it is a defense to show that an employee or prospective one is not qualified for a job. Under ADA an employer must prove that the employee is not qualified for "an essential function" of a job. Thus, the employer must be able to show the essential functions of every job.

Existing state handicap discrimination legislation requires an employer to make a "reasonable accommodation" for workers with handicaps. Under the 'essential functions" test, the employer can be required to change the job entirely to eliminate nonessential functions.

ADA broadens the definition of disabled employees in some respects and narrows it in others. in some aspects, it imposes impossible standards of proof on employers. In others, it excepts employers from some performance where there would be an undue hardship." The act also mandates specific procedures for hiring workers.

ADA already is raising many questions, and more are sure to come when the legislation takes effect in July.

This article, the first in a four-part series, begins by answering the most basic question about ADA: Who is covered?

The answer is: anyone with a disability. That includes more than just the wheelchair bound-the asthmatic, diabetic, epileptic, manic depressive, dyslexic, HIV-infected and cancer patient. Also included are individuals with emotional or psychological disorders, mental retardation and learning disabilities. Additionally, the act covers alcoholism, but not "current" illegal drug use.

The act defines a disability as "a physical or mental impairment that ... substantially limits one or more of the major life activities of... [an] individual..."

The definition is so wide that Congress estimated there are 43 million Americans covered. And this number probably is low.

ADA also covers persons who are only "regarded" as having a disability and those who only have a record of having a disability. Thus, an employee with high blood pressure that is controlled by medication would be protected, even though he is not disabled by the condition. An employer who assigned him less strenuous work because of fears he would have a heart attack would violate the act.

An employee believed to have AIDS would be protected if he were discharged because of the belief. The Equal Employment Opportunity Commission (EEOC) would even protect persons with attributes to which an employer reacts adversely, such as a facial scar or an involuntary head jerk,

The definition of disability is potentially so wide it may be easier to enumerate what is not covered. Examples of attributes that are not disabilities include:

* left-handedness

* eye or hair color

* pregnancy

* poverty

* lack of education

* a prison record

* transvestism or transsexualism

* exhibitionism or voyeurism

* compulsive gambling

* kleptomania and pyromania.

Even such a list raises questions. For instance, an illiterate person applies for a job. If his illiteracy is because of poverty or lack of education, he is not protected. If it is due to dyslexia or another learning disability, he is protected.

EEOC's examples of unprotected characteristics also can be challenged. The commission listed homosexuality among the examples of characteristics that are not disabilities. However, recent and highly publicized medical research may change that.

Unlike race, sex and age discrimination cases, it is not always clear who may be protected. And that is one, and only one, of the potential traps.

Next: What an employer must do for a protected employee, including identifying "essential functions " of a job. Part 3 will discuss special rules regarding the hiring process. Part 4 will cover certain traps, pitfalls and areas of confusion, including drug and alcohol users.

This article is for general information purposes and should not be considered legal advice. Employers should consult an attorney regarding specific issues under ADA.
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No portion of this article can be reproduced without the express written permission from the copyright holder.
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Title Annotation:part 1; Americans with Disabilities Act of 1990
Author:Kinsella, Daniel V.
Publication:Modern Casting
Date:Jan 1, 1992
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