ADA: Weakling No More

ADA: Weakling No More | Risk & Insurance The ADA has grown some muscles, and employers better start thinking about how it could beat up their workers' comp program.

By ERIN GAZICA, associate editor

Master of analogy and disability management expert Richard Pimentel has a way of painting a picture with his words. At a Thursday morning session, "Managing Injured and Ill Workers Under the New ADA," Pimentel issued a vivid and clear warning to the workers' comp professionals in the audience.

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"The old ADA was the 87-pound weakling at the beach, and employers have been kicking sand in its face for years. But the ADA sent in for the Charles Atlas workout tape and now, if you kick sand in its face, it will kick your butt."

Driving the point home, Pimentel's fellow presenter and a partner at Jackson Lewis, Frank Alvarez, said he was worried his clients are not prepared for the law to go into effect on Jan. 1, 2009.

"Since the ADA was passed, employers have won over 90 percent of cases under the ADA," Alvarez said. "We haven't had the hard cases under the ADA, and now we will. The days of winning 90 percent are over."

Alvarez said one of the key things that Congress did with the ADA Amendments Act was to change the legislative findings and purpose by stating: "the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis."

Previously, cases were won by employers who fought precisely on that question.

Illnesses that Alvarez said are quite likely to be protected under the law as disabilities are diabetes, hypertension, heart disease, cancer, depression and pregnancy complications. Injuries likely to be ADA disabilities are broken bones, back impairments, and carpal tunnel or other cumulative trauma disorders.

Closing up a session that clearly could have continued for another few hours, Pimentel tried to debunk some of the myths about the new ADA. He shot down common misconceptions, including employers providing light-duty assignments are satisfying their ADA obligations and that workers' compensation settlements resolve ADA liability and claims.

Despite his concern that employers are not prepared for how the new ADA will affect their workers' comp programs, Alvarez said he believes it shouldn't be too difficult to get ready. Employers must simply follow three steps: know what your jobs require and what it demands of an employee; develop processes and systems to individually assess whether a person can perform those jobs; and have an open mind and engage in an interactive dialogue about reasonable accommodations.

November 20, 2008

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