Florida Workers' Compensation Lawyer & Attorney : David A. McCranie : Serving Jacksonville, Miami, Tampa, St Petersburg

On 7/31/2008, Senator Tom Harkin (D-Iowa), joined by Senators Obama, McCain and Clinton, among others, introduced S. 3406, which is again designated the "ADA Amendments Act of 2008."  The bill is quite similar to H.R. 3195 on which the Senate conducted a hearing last month. One of the concerns raised at that hearing was H.R.3195's definition of the term "substantially limits" to mean "materially restricts."

 

Under the new bill, the term "materially restricts" has been deleted.  In its place, the bill says simply that "[t]he term 'substantially limits' shall be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008."  In Section 2, "Findings and Purposes," the bill criticizes several U.S. Supreme Court decisions and sets forth Congress's intent that the definition of "disability" be interpreted broadly.

 

With both major presidential candidates signing on to the bill, I'd guess that we're likely to see it pass.

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The ADA Amendments Act of 2008 (H.R. 3195), which passed the U.S. House of Representatives on June 27, is now being considered by the U.S. Senate.  The Senate Committee on Health, Education, Labor, and Pensions conducted a hearing on the bill on July 15.  You can watch the proceedings and read the testimony of the various witnesses here.

 

Much of the testimony was supportive of the legislation.  But Andrew Grossman of the Heritage Foundation expressed concern in his testimony over what he believes is an ill-advised amendment to the definition of "disability" under the Act.  Although the bill still defines "disability" as "a physical or mental impairment that substantially limits one or more major life activities," the term "substantially limits" has now been defined as "materially restricts" - supposedly a less restrictive definition than the Supreme Court of the United States has given that term in previous court decisions.  See, e.g., Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999); Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002).  But Mr. Grossman points out that the term "materially restricts" is itself not defined in the statute and thus is susceptible to varying interpretations.  The White House has expressed similar concerns in this June 24 Statement of Administration Policy.

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The ADA Amendments Act of 2008 which I wrote about two days ago passed the U.S. House of Representatives on 6/25/2008 by a vote of 402-17, with 15 members not voting.  The Senate will now take up the legislation.

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One question I get from clients fairly often is whether an employer is required to continue offering employment to an injured worker following his on-the-job accident.  As far as the Florida Workers' Compensation Law is concerned, the answer is no.  Although §440.15(6), Fla. Stat. (Supp. 1994), formerly imposed a fine on an employer with more than 50 or more employees which failed to offer appropriate employment within 30 days after the employee reached maximum medical improvement, that section was repealed in 2003. (Of course, §440.205 prohibits an employer from retaliating against an employee for pursuing a workers' compensation claim, but that's another story).

 

And although the Americans with Disabilities Act does prohibit discrimination by a covered employer (i.e., one with 15 or more employees) against an individual with a disability with regard to the hiring or discharge of its employees, because of several decisions from the U.S. Supreme Court which defined "disability" fairly restrictively, many individuals have found it difficult to obtain relief under the Act.  The "ADA Amendments Act of 2008," however, now pending before Congress with apparently large bipartisan support, is designed to overrule those decisions.  You can read a report about the proposed legislation here.  More later on how  the legislation might affect an employer's obligations to rehire or retain its workers disabled because of an on-the-job accident.

 

 

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Although this isn't a workers' compensation case, I think it illustrates how an employer's decision to terminate a disabled worker's employment for violation of  one of its policies can have unintended consequences.

 

This Florida employer had adopted what it called a "no-fault" policy for absences and tardiness.  Under its policy, an employee's absence from or tardiness to work was neither "excused" nor "unexcused."  No doctor's excuse was required.  However, each employee was allotted a certain number of "occurrences" before disciplinary action was taken, and each tardy - no matter what the reason - counted as one-half of an "occurrence."  The employee in this case was a paraplegic who despite his condition had been performing his job satisfactorily for 17 years.  Nevertheless, his medical problems routinely made him late for work.  Because of his disability-related tardiness, he eventually earned a sufficient number of "occurrences" under the employer's new policy to warrant his dismissal.

 

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