Workers' comp changes ahead: changes to the legal terrain on both federal and state levels pose a challenge to workers' comp stakeholders, The slowing decrease in claims frequency and all its reasons pose another

Risk & Insurance, Oct 15, 2008 by Leslie Lake, Joshua Clifton, Melissa Turley

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Human resources and workers' comp offices around the country are waiting to see how their obligations will change when the ADA Amendments Act is signed into law. The House unanimously adopted the Senate version of the bill on Sept. 17, and as of the publication date for Risk & Insurance[R], President Bush was expected to sign the bill into law within days.

The bill keeps the "substantially limits" language from the original landmark legislation passed almost two decades ago. Instead of redefining "disability" as a condition that "materially restricts" a major life activity, as the House's version of the legislation would have done, the Senate directs the court to interpret the terms broadly.

Experts predict that the legislation will impact the workers' comp field because more employees will meet the definition of disability and be entitled to reasonable accommodations for their impairments, including employees injured at work. Disability advocates say that employers with return-to-work programs will have to focus on providing reasonable and effective accommodations for returning workers rather than questioning whether the employee meets the technical definitions under the ADA. The bill expressly states that "the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis." Rather, the bill says the "primary object of attention" will be whether employers have "complied with their obligations."

The bill states that the amendments do not alter the standards for determining eligibility for benefits under state workers' comp laws, or under state and federal disability benefits programs. This means that the legislation does not change the definitions of "disabled" used in workers' comp and other benefits claims. These provisions would not protect an employer from a claim that it violated a duty to accommodate a workers' comp claimant under the amended ADA.

The legislation, which would take effect Jan. 1, 2009, also requires the Equal Employment Opportunity Commission to revise its regulations on the ADA. EEOC policy currently requires that a disability "significantly restrict" a major life activity, a standard Congress deemed too stringent because it creates too high a standard for employees. The EEOC said it will issue new regulations promptly if the bill is signed into law along with additional guidance for agency EEO staff.

Prior to the House approval of the Senate version of the bill, Commissioner Christine Griffin, who participated in an audio conference with the Great Lakes ADA Center on the topic, said an act of Congress would not be ignored.

"If there were a bill passed, I would imagine the EEOC would get very busy very quickly writing regulations and publishing a notice of proposed rulemaking that would have a comment period."

The EEOC would also issue guidance to ensure EEO staff and investigators understand the changes so they can guide employees who file claims through the process, Griffin says.

The legislation would require employers to make disability determinations without regard to mitigating measures, such as medication, medical supplies, hearing aids and assistive technology.

"The mitigating measures piece is astounding," Griffin says. "That alone would be a huge victory."

When the ADA was originally passed, it helped people who needed reasonable accommodations. But "erosion" of the ADA by the Supreme Court raised questions about who qualifies as disabled, she says. Consequently, more people with conditions such as epilepsy or diabetes were only protected under the "regarded as" prong.

With the passage of the legislation in Congress, Griffin predicts a shift back.

"I think people (at the EEOC) are pretty excited about getting to the work of determining discrimination and not spending all their time deciding whether someone fits under the prong of being disabled or the 'regarded as' prong," she says.

Both the House and Senate bills exclude vision impairments correctable by eyeglasses from the definition of disability, but the Senate bill adopts a business necessity test for vision standards similar to the standards set forth by the 9th U.S. Circuit Court of Appeals in Bates v. United Parcel Service, Inc. This means that employers would have to prove a reasonable business necessity for imposing vision standards on employees and applicants.

The EEOC may also dedicate resources to training employees about their rights under the revised law.

"The people who are covered by civil rights law are its enforcers," Griffin says.

THE FUTURE CONSIDERATIONS

Andrew Imparato, CEO and president of the American Association of People with Disabilities, says the proposed Senate bill makes clear that only people with true disabilities will be entitled to reasonable accommodations.

As a result, many predict there will be more litigation addressing "regarded as" disabilities if the legislation passes.

The legislation stipulates that a perceived impairment would not need to limit a major life activity in order for the employee to be covered under the "regarded as" prong. However, agencies would not be required to accommodate "regarded as" disabilities.