March 29, 2011

Tim the Lawyer on new federal ADA regulations

By Tim the Lawyer on new federal ADA regulations

Author: Timothy Sandefur

I spoke this morning to Armstrong & Getty (click here to listen online) about new regulations for implementing the Americans with Disabilities Act—regulations that even the federal government admits will cost $100 million annually, and which they also admit is probably a lowball figure. Here are the new regulations. As you can see, these regulations are intended to expand the definition of “disability.” That term means anything that “substantially impairs a major life activity”—except that it doesn’t have to substantially impair, and it doesn’t have to be a major life activity:

Whether an activity is a “major life activity” is not determined by reference to whether it is of “central importance to daily life”….  “Substantially limits” is not meant to be a demanding standard…. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.

Businesses are required to provide “reasonable accommodations” to people with these disabilities—and, of course, even psychological disorders qualify as disabilities—but what is a “reasonable accommodation”? It’s whatever the judge says it is. The regulation says:

an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities. There are three categories of reasonable accommodation. These are (1) accommodations that are required to ensure equal opportunity in the application process; (2) accommodations that enable the employer’s employees with disabilities to perform the essential functions of the position held or desired; and (3) accommodations that enable the employer’s employees with disabilities to enjoy equal benefits and privileges of employment as are enjoyed by employees without disabilities.

Also, something is still a “disability” that requires “accommodation” even if the person takes medication or something that makes them perfectly fine. “Mitigating” acts by the disabled person must not be taken into account—except glasses. I’m blind without my glasses, but I’m not disabled because with glasses, I’m fine. But if you have “bipolar disorder” and you take medication for it, you’re still “disabled” and your employer must give you “reasonable accommodations.”

The costs of providing these “accommodations” can be extremely severe, and those costs are born by businesses, not by taxpayers. That is, they have to paid for out of money that might instead have gone to expanding business, innovation, creating jobs, and so forth—but now will instead go to litigation and other wasteful activities. The ADA is the most expensive burden ever put on businesses in this country, and it’s only getting worse. This regulation will become effective in May.

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