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Non-compliance with ADA may impair your business.

The Americans with Disabilities Act of 1990 (ADA) will eventually affect the operations of practically every business in the United States with 15 or more full-time employees. Businesses must now adjust to a wide range of changes in their hiring practices, fringe benefits, reasonable accommodation for disabled workers, and a host of new requirements that will regulate their business.

To insure compliance, the ADA requires employers to deal with job applicants in specific ways in connection with interviews, application forms and other attempts to gauge the physical and psychological qualifications of the applicant. The requirements for present personnel are equally specific and broad ranged.

We can also expect expansion of the ADA's coverage, as the enforcement, litigation and judicial decisions mature and therefore, it is certain that you must stay on top of the modifications and interpretations for your own preservation.

Unquestionably, the most vexing area of concern is Employee Benefits. If you presently have medical coverage for your employees, you could be exposed to infinite uncontrollable insurance risks with each new hire and also with present employees. Fringe Benefits has become a quagmire as far as the ADA is concerned and the place where the potential costs and expenses are the greatest.

Perhaps the most dramatic consequence of non-compliance with the ADA is the substantial liability that is incurred if a new hire or present employee files a complaint, and the enforcement wheels start to turn. In addition to compensatory damages, be aware that punitive damages can be awarded by a jury. In the nation's first trial of an employment discrimination lawsuit in Chicago, under the Act, brought on by the U.S. Equal Opportunity Commission, there was a jury verdict of $250,000 in PUNITIVE damages as part of a $572,000 overall verdict.

You should adapt recruitment procedures, review the interview process and the entire job application process to be protected from liability for violations of the ADA. The handicapped should be employed on a much broader basis, and in greater numbers and therefore every effort must be made for "reasonable accommodation."

Clearly, the ADA legislation imposes an affirmative obligation upon employers to assist a disabled job applicant in achieving an employment opportunity. The breadth and expense of the obligation to provide a "reasonable accommodation" must be carefully reviewed by employers. Under no circumstances, however, would an employer be required to undergo any "undue hardship." Reasonable accommodation may very well prove to be a substantial area of difference between employer and employee. The employer and the employee have respective obligations in trying to arrive at a "reasonable accommodation." Treating an employee fairly, may mean that the employee must be treated differently.

The ADA is a complicated statute. Each and every aspect of the legislation literally has dozens of requirements and exceptions, and each and every employer must now become familiar with the "dos and don'ts" of the legislation. The disabled individuals who have fought for this legislation are now anxious to take their rightful place in the working community and are becoming aware of the opportunities that now present themselves for the first time.

Some Suggestions:

* Zero in on the ability of the individual rather than concentrating on the disability. If the employee takes pride in their accomplishments, there is a mutual advantage gained. A repetitive task may be the answer for someone with a learning disability.

* The disability of a worker may prove to be an advantage in accomplishing the work assignment in the job description. One who has a hearing impairment may be able to focus far more intently on preparing or gathering written data and information. A hearing impairment problem could be solved with special new equipment as per ADA (Auxiliary Aid).

* Consult with the disabled person, who has a far better understanding what is necessary for a blind person, or one in a wheelchair. Also, an educational campaign for your employees, about the specifics of disabilities, would help to alleviate and level any psychological barriers that may exist.

* Avoid disability related questions in interviews such as mental health history and physical disabilities not visible to the naked eye. Although an applicant may be queried about his or her ability to perform specific job related tasks because it is permissible, care must be exercised.

* Review all contracts with employment agencies, labor unions and insurance companies providing fringe benefits to see that their practices do not discriminate against your employees. The ADA provides that an employer may be liable for the discriminatory practices of other firms with whom it has a contractual relationship, but it is very vague and unclear.

Since the ADA became effective, the relationships of employers and disabled employees have changed dramatically, and it is vitally important that each of the parties understand this sensitive and technical legislation.
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Title Annotation:Legal Review; American with Disabilities Act of 1990
Author:Stein, Richard
Publication:Real Estate Weekly
Article Type:Column
Date:Jul 21, 1993
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