When The Americans with Disabilities Act (ADA) was signed into law on July 26, 1990, it was lauded as one of American’s most comprehensive pieces of civil rights legislation.

The law prohibits discrimination and guarantees that people with disabilities have the same opportunities as everyone else to participate in employment and other mainstream activities. It was later amended in 1994 to include employers with as few as 15 employees.

Anti-discrimination laws continue to evolve, and some states have taken them further.

They have crafted their own civil rights laws that may expand benefits and coverage in crucial ways employers need to understand to avoid the costly consequences of running afoul.

Things to Know When Operating in Multiple States

What’s a business with locations in multiple states to do to ensure they are complying with each state’s laws and that employees’ rights are protected?

Simply being aware that laws vary by state, and that the federal law may not override all others, is one way to minimize the risk of being sued for discrimination by a person with disability.

Nanesha Courtney, manager of return to work services, Broadspire

“Many states have their own disability laws that complement the ADA,” said Nanesha Courtney, manager of return to work services at Broadspire, a TPA that provides case management for workers’ comp, long-and short-term disability, claims management other services.

“A lot of times, the state laws are more stringent than the federal laws,” she added.

“Oftentimes they are called non-discrimination laws. The rule of thumb is that you go with the more stringent law.”

She said businesses with locations in multiple states tend to run into trouble when they don’t have a person, either on staff or a consultant, who’s familiar with or keeping track of changes in a particular state’s laws.

“Often, by the time the local facility or location gets the information about changes in the state law, they are running behind and putting the business at risk,” Courtney said.

Andy Sherrod, a partner with Hirschler Law, agreed the notion that the federal law will always prevail over state laws is mistaken.

“I think a mindset within some employers, even ones that operate in multiple states, has been to default to compliance with the federal law, sometimes with the false assumption that they’ll also be compliance with the local laws,” he said.

Sherrod is well aware of how state disability laws differ and are constantly changing. He said states with stricter laws tend to have more liberal state legislatures.

In Virginia, where his firm is located, Sherrod said the expansion of benefits for employees with disabilities “is largely a function of the politics in our state legislature. We’re now pretty firmly under the control of the Democratic Party. Part of their legislative agenda has been to promote employee rights and that’s similar to what you’re seeing in other blue states.”

In Virginia, for instance, a new law that took effect on July 1 added “disability” to the list of characteristics protected from discrimination under the Virginia Human Rights Act.

Another new element requires employers to post information concerning an employee’s rights to reasonable accommodation for disabilities in a conspicuous place and include the same information in any employee handbook.

This information must be provided to new employees at hire and to any employee within 10 days of the employee providing notice of a disability.

Virginia and California, as Examples

Unlike the federal ADA that applies to employers with 15 or more employees, the Virginia law applies to employers with more than five employees when a claim of unlawful termination is made based on disability or other protected statuses, such as sexual orientation, gender identity or pregnancy.

While the ADA has caps on damages allowed in lawsuits, there is no cap in Virginia.

Another risk factor unique to Virginia (but not part of the Virginia Human Rights Act) is a difference in civil procedure that makes it almost impossible to short circuit a case by summary judgment, a move utilized in federal court to avoid a jury trial and weed out claims that don’t have a factual basis.

Due to the COVID-19 pandemic, Sherrod said filings of discrimination cases have been limited recently, but he expects that to change.

“I think an increase is coming,” he said.

“My anticipation is we’re going to see a lot more Virginia state court litigation for Virginia employers. It’s going to be more expensive, because if you can’t settle it early on [due to the lack of summary judgment], the only option is going to a full-blown jury trial.”

Nestor Barrero, partner, Constangy, Brooks, Smith and Prophete

Sherrod said employers need to pay close attention to making reasonable accommodations for persons with disabilities, which, under federal law, is defined as any change to a job, the work environment or ways things are usually done that allows an individual with a disability to apply for a job, perform job functions or enjoy equal access to benefits available to others in the workplace.

Employers must provide accommodation to qualified individuals with disabilities unless doing so would impose a unique hardship.

Nestor Barrero, a Los Angeles-based partner in the law firm of Constangy, Brooks, Smith and Prophete, said the California’s Fair Employment and Housing Act, which covers discrimination against people with disabilities, also has important differences from the ADA.

The law in California applies to employers with five or more employees.

The ADA limits damages to $50,000 for small employers and $300,000 for larger ones. In California, there is no cap.

The California law specifies some of the reasonable accommodations that might enable a person with a physical or mental disability to apply for or do a job.

These include, but are not limited to, changing job duties, providing leave for medical care, changing work schedules, relocating a work area or providing mechanical or electrical aids.

The ADA uses the term “substantial impairment,” such as hearing, seeing, speaking, walking, or breathing, to define the physical or mental impairment that might keep a person from being able to do a job.

The California law defines a disability as any condition that merely limits a major life activity.

Barrero recommended employers train managers to understand that a disability under the California law may not be obvious.

“They need to get out of the mindset that a disability has to be substantial and get into the mindset that it can be what might appear to be lower level or almost trivial limitations,” he said.

He added employers need to think more broadly, both about what a disability might be and what reasonable accommodations might be made.

For instance, he said an employer may have to think about whether it is reasonable, rather than a hardship, to allow an employee to be tardy occasionally because they are depressed and can’t get out of bed on time. Or they may have to change the way they communicate with an employee.

“If someone has ADHD, for instance, maybe the communication style is not going to be to bring them in your office and say ‘This is what I want you to do today,’ ” Barrero said.

“Maybe you’ve got to put it in writing. Maybe that person will work better with a work list they can refer to throughout the day.”

California and the ADA both require employers to engage in an interactive process with an employee to determine the nature of their disability and how it may affect their ability to perform essential job duties.

A Final, Key Piece of Advice

While the interactive process can be informal, he and Sherrod both recommend documenting it.

“Documentation is key in almost all employee matters and the reasonable accommodation interaction is no different,” Sherrod said.

“I counsel my business clients to document, document, document in these situations. If an employee will sign off on the understanding between the parties on what reasonable accommodation will be made, that will certainly help reduce risk.” &