....Sweeping new regulations from the Equal Employment Opportunity Commission offer new guidelines on the issue of how to define "disability" under the Americans with Disabilities Act.
The ADA, originally passed in 1990 and updated by Congress in 2008, originally defined disability as "a physical or mental impairment that substantially limits a major life activity."
The problem is that now we've gone from this to:
Although the new regulations cannot classify any condition as a disability per se, there is a list of maladies that will be viewed that way "in virtually all cases." The list includes: autism, diabetes, epilepsy and post-traumatic stress disorder.
Autism, epilepsy and post-traumatic stress disorder.
Those three aren't exactly "lifestyle choice" problems. They're either genetic or environmental (beyond your control); PTSD is commonly-associated with someone who has been in combat, for example.
While both sides acknowledge it is only a matter of time until a legal challenge to the regulations is filed, Feldblum believes they will provide courts with plenty of clarity. She's also urging employers to stop focusing on defining disability, and spend more time on accommodations.
"I am hopeful that employers will now move to the next question which is, 'How do we make sure our workplace is welcoming to people with a range of health conditions?'" she told Fox News.
Maybe in some cases this won't have a material impact on an employer's cost structure and thus profitability. But in other cases it will.
One of the major problems for an entrepreneur is trying to calculate the cost that could present itself if someone applies for a position, is qualified, and has a condition that falls under the law. You can't refuse to hire him or her because of the increased cost it will impose on the company - that's a violation of the law and has been since it was enacted.
The degenerate case is someone who makes $12/hour answering phones but requires a special workstation configuration change to your office system to be able to do their job. Let's say it's some sort of custom chair and desk arrangement. Since it's not an off-the-shelf product, the cost of that might be $20,000, or close to a year's salary, or even higher. You have to accommodate that disability and you cannot differentially pay the employee to recover any of the expense.
While you can try to argue that the cost is unreasonable (the ADA does include a "reasonableness" standard) you're then fighting not the potential employee but the government who then can (and does) come after you with an EEOC lawsuit. They can (and will) spend dramatically more than the accommodating makes suing you, and force you to spend more than the accommodation costs in responding to the suit whether you win or lose. As such for anything short of an outrageously-expensive accommodation (e.g. $100,000+) it's cheaper to bend over and do it rather than fight, since even if you win you're still out the legal expenses; this makes the merit of the argument immaterial.
There is only one saving grace - most of this claptrap only applies to companies with 15 or more employees.
The obvious answer, of course, is to not hire that 15th person.
So much for a jobs recovery.
Where We Are, Where We're Heading (2013) - The annual 2013 Ticker
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