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By MATTHEW BRODSKY, senior editor/Web editor of Risk & InsuranceŽ

CHICAGO---"This is a train coming, and it's coming right at you," warned Richard Pimentel, consultant, frequent lecturer, and senior partner at Milt Wright & Associates.

Under the old ADA, passed back in 1990 in large part due to the efforts of the hearing-impaired Pimentel himself, employers won 90 percent of discrimination suits, according to Pimentel. Under the new Triple A, they could expect to lose 90 percent.

One reason is the hiring of 300 new investigators at the Equal Employment Opportunity Commission, as well as the appointment of new EEOC board member Chai Feldblum, who is a staunch ADA advocate.

The effects of the renewed regulatory vigor and legal changes are already being felt. Just ask Sears. The retailer recently settled with the EEOC on a $6.2 million fine, in large part because of a policy whereby it would fire workers who had been off work beyond a certain time limit, no matter the reason, including injuries. In effect, Sears failed to consider that additional time off could be considered a reasonable accommodation for injured workers.

For Pimentel, it is a clear indication that the EEOC and the ADA now will have everything to do with injured workers. The new climate demands a near revolutionary response from employers: All ought to "immediately" revisit their return-to-work and disability management policies and procedures to ensure their compliance.

"In these bad times, the last thing you want to do in return-to-work is get sued for doing something wrong," he said.

The new law sheds all mitigating factors, expands the definition of "disabled," and puts greater emphasis on accommodation. A worker could get "injured worker" status as well as become qualified as an individual with a disability, needing a reasonable, sometimes permanent, accommodation. To cope, employers will need a mechanism by which disability staff can notify the ADA people in HR about employees in the RTW program--every one of them--so they can analyze whether these people are disabled.

WHY THE TRIPLE A?

Consider the ADA Amendments Act the law advocates for the disabled had always wished for.

"The ADA was a perfectly good law until the courts got a hold of it," Pimentel said, explaining how one court decision after another confounded the application of the law with so-called "mitigating factors." These factors were anything that could lessen the impact of a disability, such as a hearing aid for a deaf man or medicine for a diabetic.

Eventually, the ADA had become a toothless tiger, in a Pimentelian analogy. So in 2008, the cat was taken to a tiger dentist who fitted it with a new set of fangs. And now the tiger is determined to set upon all those who had taken advantage of it in the past and feast upon them, according to Pimentel.

Though Pimentel's illustrations and anecdotes can lighten even an insurance crowd's mood, this is no laughing matter for employers.

Pimentel recounted a recent visit he made to the head counsel of a Fortune 50 corporation. The top lawyer admitted his company had faced about 10 discrimination suits in the previous year and won each one.

Had the company actually discriminated against those plaintiffs, Pimentel asked.

Yes, in each case, the counsel admitted, sometimes "embarrassingly so." But the company won because it argued that the plaintiff was not in the protected class because of a mitigating factor.

How many cases did the lawyer expect this coming year? About 10 to 15. How many did he expect to win? None.

(Click here to read all of our other coverage from the Annual National Workers' Compensation and Disability ConferenceŽ & Expo.)

November 23, 2009

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