ADA Restoration Act

Dear HR Executive:

You've probably heard about the ADA Restoration Act (ADARA, S. 1881, H.R. 3195). Just when you were thinking, "FMLA intermittent leave really makes my day," it could get even better if Congress passes this law. Opponents are saying you could end up spending hours every week trying to accommodate "disabled" employees with neck strains, headaches and sore feet. A House committee held hearings on the topic on Tuesday, January 29.

I'm going to point you to a lengthy article from The Heritage Foundation that explains why it's a big mistake for Congress to tell companies they have to accommodate people with minor ailments. The gist of the HF's argument is that the ADARA will be prohibitively expensive and -- worse yet -- will hurt people who really are disabled under the current ADA definition (which says a disability is something that "limits a major life activity"). Please note the SHRM has asked all its members to oppose the legislation.

To be fair, I'm including a link that discusses the ACLU's position, which is that recent court decisions have eroded the protections provided by the ADA and made it necessary to restore its original intent. Here's an article stating the position of the ACLU and many organizations that represent the disabled. 

I encourage you to tell us what YOU think. Do you agree/disagree with Heritage and SHRM? Do you think they're being mean spirited? Is there a compromise? What would the ADARA mean at your company? Go to the "comments" link below and share your thoughts.

Stephen Meyer
B21 Publisher

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Comments

[Kay]

Interesting conversation. Unfortunately that old demon of party politics has appeared even here. Such a shame.

I consider myself a democrat most of the time--and a very ethical democrat, at that. Nonetheless, I'm not in favor of the proposed restoration act.

Perhaps even more surprisingly, I coordinate disability services at a well-thought-of competitive college. And I know many of my colleagues have expressed support for this proposal.

I happen to think this legislation is bad for the quality of higher education in this country, and bad for employers too. Maybe most of all, though, I think it's bad for those individuals with real disabilities. Who will take their needs seriously when they're lumped in with so many others claiming disability status for conditions that are mildly problematic.

Right at the outset I want to be clear: I care a great deal about my students (and friends) with disabilities. I want them to have a fair shake. Absolutely! And they don't always get it.

But I also want legally mandated accommodation to be based on something other than just any old disorder or impairment. I want accommodations mandated ONLY for those disorders and impairments that are truly disabling, especially if other people--whole student bodies, their parents, state taxpayers, donors, and independent businessmen (and women)--are going to foot the bill for those accommodations.

Half the population has been diagnosed with something--astigmatism, mild arthritis, insomnia, a sprained wrist, hypoglycemia, a touch of gout, etc--and I'm not eager to have them all labeled as "disabled."

First of all, most of them are not really disabled; they're just on a rather normal spectrum of the human condition. To mandate accommodation, the recipients should be located outside the normal spectrum. Otherwise, why not just mandate that everyone's preferences be met all the time...no matter what the cost? Of course, I'm sure such an approach could kill the economy faster than a poorly thought-out war in the middle east.

Let's face it, processing and accommodating disabilities costs money and time. It's a great thing (truly great) to make more opportunities available to those who have all the relevant capabilities, even as they're forced to live with other significant, life-altering limitations. I'm for that 100%. But to call someone who's nearsighted "disabled" is silly...and there's already been a lawsuit involving just that.

If individual universities want to adopt universal design, and gear all their educational endeavors to the least capable learners in every group, then it's fine with me...unless I, as a taxpayer, am forced to foot the bill. But I absolutely do not want these schools legally mandated to "do whatever it takes" to make every student successful, no matter what the cause of the problem.

That's where we are in K-12 with IDEA. No longer does a student receive special treatment because of a significant identified condition; they simply have to be doing poorly in school--failing to benefit from instruction. It could be for any number of reasons having nothing to do with disability. IEPs don't even include diagnostic information anymore (much of the time).

But this makes some degree of sense in the K-12 years, since the availability of free and appropriate basic education has always been mandated in this country. (And I'm sure it saves everyone in those school systems lots of time and effort when they don't have to identify any reason for that failure to benefit.)

But this line of thinking makes no sense in optional domains, like higher ed or the employment world. These entities (employers and colleges) should have the right to choose the people MOST suited to the particular environments in question. And these entities should have every right to prioritize excellence.

Then, if there is someone who demonstrates the requisite excellence, but who needs assistance with serious peripheral limitations in order to make use of those excellent abilities, accommodation would make sense...and the attendant expenses would also, in most cases.

From my point of view, it would indeed be government intrusion of the worst kind to tell institutions of higher education and employers in general that they can no longer have standards without the risk of incurring huge expense for the most trifling of ailments. This proposed legislation is Godzilla in disguise...even though I expect it was initially conceived with the best of intentions.

[Jason Diamond]

As and adult with a learning disability I fall under the ADARA's jurisdiction. Stephen Meyer who wrote this article obviously did not do his research "Sore feet" and headaches are not disabilities they are physical ailments. It really pisses me off when people like you think that they will spend a great deal of money and time trying to accomadate people with disabilities. THAT IS NOT TRUE!!! There are generally easy fixes for the accomadations. So if you don't have time to take five minutes out of your day to explain something but, you have the time to write this article and be a jerf off. Where is the hipocracy in that? Next time you want to type something do your research first please!

[Andrea]

Most of the fear of both the original ADA and the proposed ADA Restoration Act are rooted in profound misunderstanding and distortion of what these laws mean, and further in profound stereotyping of people with disabilities. The intent of the ADA Restoration Act is not to protect people with a minor sprain, for cripes sake. It's meant to protect people who do, in fact, have disabilities, who ARE ABLE TO DO THE JOB FOR WHICH THEY WERE HIRED, but due to myths and misconceptions on the part of the employer about their true capabilities or the true cost of accommodations, end up experiencing discrimination. It is NOT meant to protect workers who genuinely cannot do the job. It is NOT meant to throw a small company into bankruptcy--in fact, if you have fewer than 15 employees, you're exempt from the ADA as far as your employees are concerned anyway. And even if you are in fact legally obligated to accommodate, the vast majority of accommodations are fewer than $400, and many are actually free (for example, a hard of hearing employee may simply require that you face her directly, with good lighting on your face, so she can have a chance to lip read you). So, frankly, even a one-employee operation could stand to learn a few things about the true capabilities of people with disabilities--many of whom just might have skills you could desperately use--and to learn a few things about what "reasonable accommodations" actually entail. Sure, there will be specific cases that just wouldn't work out. But if you keep yourself open to the possibilities, then you just might find you end up SAVING money by hiring a hard-working, talented, loyal employee (disabled workers on average have LOWER absenteeism than non-disabled workers, and have LOWER turn-over rates).

Most of the claims that the Restoration Act would wildly expand coverage to people with an ouchy finger or tattos are either hyped up exagerations or profound misunderstandings of what the ADA and the Restoration Act actually entail.

The movement to pass the ADA Restoration Act was initiated by BOTH DEMOCRATS AND REPUBLICANS who were involved with writing and passing the initial ADA. They decided a Restoration Act was needed because the courts have created an unnecessary "catch 22" for many people with disabilities, where employers are able to say "this person is too disabled to work but not disabled enough to qualify for the ADA." And the courts get so hung up on technicalities (like, is thinking a major life activity? or sleeping? Some court decisions have said no!) that they don't even get to the real evidence of the case to determine whether the employer's behavior was fair and reasonable under the circumstances, or whether it might have been unfairly discriminatory.

[Blanche Pearsall]

Just producing the never-ending documentation for ADARA would be almost impossible or, at the least, put an unreasonable burden on companies who would have to comply. Also, many individuals who are entitled to disability benefits hesitate to apply because they want to be self-sufficient as long as possible. I'm afraid the government has forgotten that employers DO have a limit!

[Lynda Cohen]

I am fearful that government regulations make the USA uncompetitive in the global marketplace.

[Alarmed]

Recently I had a lab employee who was brand new and broke her leg. She lived very far away and was unable to drive to work with the broken foot. Because she did not live close, she wanted to telecommute (mind you, she is a lab employee), or us to provide her transportation. I shudder to think of what would happen if this had happened after the ADARA. I work for a small business; this will really hurt us financially. I have no idea why Congress, the ACLU, et al. does not see the overall consequences of passing such broad legislation. I understand their concern for the individuals who may have had legitimate ADA issues, but lost in court, however, there has to be a happy medium, with these proposed changes, we are going to the opposite extreme.

[Connie D. Lingle]

The ADA Restoration Act would have an adverse effect on our transportation and warehouse companies. We would be unable to give our customers the type of service we promise. We transport and warehouse new furniture that is handled by our employees. This sometimes results in sprains and strains to muscles. Our companies operated with "no fluff" meaning we do not hire more people than we need; thus we have very little down time and lay off time. This new ADA Restoration would prohibit our companies operation and growth by forcing us to hire more employees than needed to insure the deadlines are met. Congress should look carefully to the backlash of such a change in the law.

[Ray]

It is absolutely ridiculous to put this type of burden on the shoulders of employers. And it will hurt those that are legimately disabled. Thank a Democrat, you can bet they are behind this movement as they are behind every movement to destroy American business and capitalism.

[Monica Enrique]

The ADA Restoration Act would devestate the daily operations of my company. I work in the automotive business (conglomeration of dealerships) and we have hurt backs, ankles, fingers, etc. all the time! This is just another example of excessive governmental intrusion into private industry because of irrational fears!.