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By DAN REYNOLDS, senior editor of Risk & Insurance®

When it comes to measuring the realities and ramifications of the Americans with Disabilities Act Amendments Act (ADAAA), employers need to know a few things up front, according to the experts we talked to.

"It just started snowballing to the where the disability community was saying, 'You know, it is getting to the point where, if you were disabled enough to prove that you're disabled, you'd be too disabled to work anyway'," said Richard Pimentel, a senior partner with the Granada Hills, Calif.-based consulting firm Milt Wright & Associates. Pimentel is a disabled Vietnam War veteran whose efforts to train employers on the needs of disabled workers contributed significantly to the creation, passage and signing into law of the original ADA.

In addition to expanding the definition of what constitutes a disabled person, the amended act will require employers to document how well they are training supervisors to accommodate disabled workers. For those who want to avoid substantial discrimination claims, the construction of strong absence and disability management programs that are well communicated to employees will be a must.

"I really do think that is going to be the focus of the law, that interactive process," said Adeola Adele, the New York-based U.S. employment practices liability leader for Marsh.

Adele said that the primary development in the ADAAA is that it creates a much broader definition of disability.

Employers now stand a much better chance of losing the resulting legal battle if a discrimination claim is filed, according to Pimentel.

"First of all, employers aren't afraid that they are going to see more claims," Pimentel said. "The employers were winning more than 80 percent of the claims."

"The employers are afraid they are going to lose some of these claims, so let's get that straight," he added.

For example, under the amended act, an employee who suffers from depression may be able to function quite normally with the aid of medication but will still be considered to be disabled and will need to receive accommodation.

NO INSURANCE IMPACT?

In terms of insurance coverage, Marsh's Adele said that existing employment practices liability insurance policies shouldn't have to be rewritten or modified.

"We would push back on any attempt to limit coverage just because the act has been expanded," she said.

Adele acknowledged that the frequency of discrimination claims will likely increase, as will the frequency of litigation losses resulting in judgments requiring insurance coverage. But she indicated that the severity of individual claims will likely not change all that much, with class actions in this field being a rarity.

"I don't think the individual claims that we would get would warrant tightening of coverage for ADA discrimination claims," Adele said.

But, that said, employers have lots of work to do now to limit frequency, outside of the details of their insurance programs.

Employers should be integrating their disability management programs to include nonoccupationally injured and ill employees, not just workers' compensation, according to Pimentel.

"That is the big trend, and by the way, from an ADA compliance standpoint, I recommend employers take a close look at doing that," Pimentel said.

Employers should also be revisiting how much training they are doing among their supervisors on employee etiquette, language and comfort levels in communicating with disabled employees, the consultant advised.

"Talking to them about their needs for accommodation is going to be an enforced requirement under the law," Pimentel said.

April 18, 2011

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