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Americans With Disabilities Act Much More Effective
Author: Ray Brasted | Friday January 16, 2009
Experts Richard Pimentel (at right) and Frank Alvarez warn employers they had better do the right thing to provide work place opportunities under the newly toughened up ADA.
Americans With Disabilities Act (ADA) Toughens Up
What would be the best way to define the legislative changes in the Americans with Disabilities Act (ADA)'? Richard Pimentel, an expert on work place disability issues and a man who was involved in the writing of the original law passed in 1992, uses an analogy that is easy to understand.
"The old ADA was the 87 pound weakling at the beach who got sand kicked into its face, losing about 80% of the cases brought to court. We now have the Charles Atlas of workers' compensation. The new ADA will kick your butt if you (employers) try to challenge it," Pimentel advised an audience made up of human resource managers and company administrators.
Pimentel and fellow ADA expert, attorney Frank Alvarez left the audience shaken and stirred with their interpretation of the law that went into effect Jan. 1, 2009. They spoke at a workshop held during the National Workers' Compensation & Disability Conference held in Las Vegas in November.
Employers will have to change their ways was the clear message. They will have to build an employment model that they can use to hire some of the best and brightest individuals in the work force. "People with disabilities are the best educated and most unemployed group in the world," Pimentel said. He might have been appealing to the sense of doing the right thing, but he also made it clear that opting out of compliance is not a viable management decision.
Essentially the new ADA "makes clear that a lot of injured workers are covered. "Last year the statement 'no one who has had a bad back will ever work in my warehouse' would hold up in court. You would win your case. This year you will lose," Pimentel emphasized.
Workers' compensation attorney Frank Alvarez was the second part of the one-two punch delivered at the workshop. "Employers really don't know what is going to hit them. This new law has three times the punch," he said, agreeing with Pimentel that as many as 90% of challenges that were successful before Jan. 1 will now fail.
Alvarez said that there are policies that companies, especially those who have fought the ADA, can do to play catch up.
"You have to know what each of your jobs demand." He said that job descriptions should be clear and in place. Secondly, Alvarez advised that processes be developed and systems put in place to accurately assess whether job applicants can do the jobs they are seeking.
Thirdly, he said corporate America should have an open mind and promote an interactive dialogue about what constitutes reasonable accommodations under the law.
Pimentel added that employers should have processes in place to do the assessments and consider putting together a team to develop and manage proactively. Both experts agreed that the "new" ADA leaves little wiggle room in regard to compliance and the path to avoiding litigation will be to work with each individual case on its own merits.
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