Editorials

A slowing economy and rising unemployment rate has prompted many calls to Congress to "do something" to help turn things around.

With elections nearing, it appears to be time for national legislators to be listening to the people, and they have been talking about further economic stimulus proposals.

But it might surprise many to know that these developments haven't kept Congress from putting economic unfriendly legislation at the top of its agenda. This legislation would increase the regulatory burden on employers.

It is the ADA (Americans with Disabilities Act) Amendments Act that has been sailing through the legislative process and already has gained House approval (H.R. 3195). Observers think the Senate version (S. 3406) also will pass.

Conservatives in Congress do not have the numbers to block the legislation, but they do still have an opportunity to at least ameliorate its potential negative effects, said Andrew M. Grossman, a legal policy specialist at The Heritage Foundation.

The objective should be insisting on a bill that does not uproot nearly two decades of experience under the ADA and throw employment disability law into chaos. Grossman said this can be done by building on the superior Senate version of the legislation.

Stressed as particularly important is that the definition of "disability" be clear so employers can meet their obligations under the law with minimal confusion and expense.

Under current law, a disability is defined as "a physical or mental impairment that substantially limits one or more major life activities." Whether an individual is disabled determines whether an employer must investigate and implement accommodations and whether an employer is subject to liability under the ADA for failing to do so.

Grossman said the House's proposed legislation would radically amend this definition. Unlike the original ADA Restoration Act, which would have done away with the "disability" concept, the current House bill not only maintains the ADA's three-prong core definitional text but defines "substantially limits" to mean "materially restricts" in the definition of disability.

The phrase "materially restricts" has no established meaning, it is pointed out, and may be distorted to render "stomach aches, a common cold, mild seasonal allergies, or even a hangnail" disabilities.

The Senate version avoids the problem language of the House bill with "a far measured approach," Grossman said. It also revises the House's command that the definition of disability "shall be construed broadly" to achieve the ADA's purposes.

Considering current economic conditions, the Senate bill still advances ill-conceived policies at a time when the nation can ill afford to, but it is "far less damaging and irresponsible" than its House counterpart, Grossman concludes.

Congress consistently avoids following the "first, do no harm" approach in its legislative efforts.

It shouldn't be too much for the people to demand, however, that legislators at least limit the damage by rejecting the House ADA reform version that would inflict unnecessary pain across the economy.

()