"You are going to see a proliferation of lawsuits as a result of the 2008 amendments to the Americans with Disabilities Act," predicts Steven J. Pearlman, an attorney with Seyfarth Shaw LLP, a Chicago, IL law firm specializing in employment law.

The amendments made substantial changes which make it much easier for employees to bring suit. Pearlman said that the provision involving "major life activities" will have a big impact. Prior to the amendments, the U.S. Supreme Court had held that the ADA applies only if the disability "severely limits" a "major life activity." The amendments severely limit that ruling.

Pearlman's comments came at BLR's Illinois Employment Law Update (Chicago, IL, October 1-3, 2008.). He was joined by colleagues Tracy M. Billows, and Jonathan J.C. Grey in urging employers to redouble their efforts to comply with the ADA.

"Change your mentality"

Under the ADA, employers have to accommodate an employee's disabilities, unless to do so would cause an undue hardship.

What constitutes undue hardship? Pearlman advises employers to stop focusing on that question. Instead, "Change your mentality," he urges. "You should try to make the reasonable accommodation." To deny accommodation, employers have to show that accommodation "unduly" costs money or disrupts operations. In practice, courts take a very hard line, making it difficult to win a case. Because of the risks involved, employers are better off starting off trying to make the accommodation, as opposed to relying on the "undue hardship" provision. Pearlman's point is that employers should start out trying to make the accommodation, since that is what they will likely have to do in the end.

Individual assessment

There are many, many cases where accommodation is not possible or necessary, but "undue hardship" is not something that can be reduced to a simple rule or guideline. It varies with each situation. Whenever an employee requests accommodation because of a disability, the employer must determine, an on an individual basis, what must be done. "You can't make a generic determination. One size dos not fit all," Pearlman said.

Consistency important

Whether or not something will be seen as constituting an "undue hardship" will often depend on how you treated others, particularly when the employee did not have a disability. "If you have provided leaves or allowed employees scheduling leeway before, you're going to be in trouble if you deny it here," he said. It may cost you money, but your prior conduct will be used to prove that it's not "undue."