Getting Down to Business (Overhead Expense)
I was very early in my career when President George H. W. Bush signed the Americans with Disabilities Act of 1990 into law. A local newspaper reporter who trained at the sports medicine and fitness program I directed asked me in passing what I thought about the ADA. We recently had added an “industrial athlete” program to our services and employer reluctance to accept rehabilitated employees back to work frustrated me. I speculated we were going to leverage the new law to help our recovered clients return to work—under the guise employers perceived the workers as having disabilities that prevented them from performing their jobs. (Perception of a disability is the third tenet under the ADA’s definition of disability.)
About a week later, my exchange with the reporter found its way into a front-page article in the newspaper’s business section. As the story spread, I found myself asked to present my off-hand conjecture about the ADA’s impact on injured and ill workers at the first conference addressing the implementation of the law. I was hesitant, but my employer thought it was a good opportunity for the local rehabilitation hospital with which we affiliated our services, and the conference organizers assured me the conference had limited registration numbers.
So, off I went to Washington, D.C. with my slide tray and overhead transparencies, expecting to discuss my thoughts with about three hundred people. I received a message when I checked into the hotel from the meeting organizers. The niche conference was now a standing-room-only extravaganza with thousands of attendees.
My session was late in the afternoon and I tried to refine my thoughts as I watched countless leaders in the federal government and disability community speak about the ADA’s importance for people with disabilities. No one mentioned the possible impact of Title I (the employment section) of the law on injured or ill employees.
Once on the stage, I pictured my clients and knew I was making a case to help them. Attendees peppered me with questions and were largely open to my stories about the experience of these employees whose employers perceived as now being people with disabilities.
I spotted someone leading Christopher G. Bell, one of the architects of the Americans with Disabilities Act, to the microphone. He respectfully told me while my thoughts were interesting, the ADA was not written to protect injured workers. I found my voice after he finished and said: “Then who will protect them?”
In 1997 (the first year the Equal Employment Opportunity Commission reported data on ADA claims), people with non-paralytic orthopedic problems filed approximately 25 percent of the EEOC’s employment discrimination claims. An additional 11.4 percent of claimants submitted complaints as being regarded as having a disability.
The trend of employees with injuries and illnesses seeking protection under the ADA continues to date. Since the start of fiscal year 2011 the EEOC filed lawsuits to seek relief for victims of discrimination with a variety of impairments, including cancer (e.g., breast cancer, basal cell carcinoma, and colon cancer), emphysema, epilepsy, deafness, blindness, retinitis pigmentosa, traumatic brain injury, HIV, multiple sclerosis, spinal stenosis, neuropathy, herniated discs and other back impairments, diabetes, anemia, coronary artery disease, end-stage renal disease, PTSD, narcolepsy, depression, anxiety disorder, and dyslexia. Injured workers and people with chronic illnesses represented the lion’s share of claimants. The suits included a broad array of the United States’ brand-name employers.
On October 18, 1992, Bloomberg Business ran a story called: The Giant Loophole Called The Disabilities Act. The article warned employers may “face a lot of ADA suits from injured workers.”
The story quoted Christopher Bell who explained employers must take reasonable steps to accommodate injured employees with permanent disabilities, including putting workers on light duty or in a vacant position, altering work sites, tables, or chairs, or even hiring an assistant for the blind.
“Reasonable accommodation must be done on a case-by-case basis,” said Bell, who was the EEOC lawyer in charge of ADA services. “That drives employers nuts, but everyone’s situation is different.”
I often wondered if Mr. Bell remembered a twenty-something clinician who had no business speaking at the first ADA implementation conference. Whether he did or not, it turned out—despite Bell’s original intention when writing the Americans with Disabilities Act—he protected injured workers after all.
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