Concerned that the original intent of the
ADA
was being thwarted by legal precedent that made it difficult for disabled individuals to successfully assert the protections of the
ADA
, Congress issued the AADA (Amendments to the Americans with Disabilities Act). In so doing, Congress paved the way for a likely increase in disability discrimination lawsuits. 
The following is a summary of the some of the important changes that are set forth in the recent amendments to the Americans with Disabilities Act (“ADA”) that were signed into law by President Bush on September 25, 2008. These amendments will be effective on
January 1, 2009
.
Although the effect of these amendments on employers will be to enable more employees to meet the threshold definition of disabled under the ADA, employers should keep in mind that in most states, the definition of disabled under the state employment discrimination law is much broader than the ADA and already allows employees to claim they are disabled based on almost any impairment. Therefore, most employers have already been treating most employees who requested reasonable accommodations as disabled and not getting caught up in definitions under the
ADA
. However, clearly in the long run these amendments will broaden the scope of the
ADA
and ensure that more employees meet the initial definition of disabled under the
ADA
. Thus, the majority of court cases will now be decided on whether, in fact, employees were discriminated against rather than on whether they are disabled.
To be disabled under the ADA, an employee must show that he/she has an impairment that “substantially limits” one or more major life activities or that he/she has a record of such an impairment or is regarded by his/her employer as having such an impairment. The employee then must demonstrate that this impairment “substantially limited” a “major life activity”. The final step in establishing that an employee has a disability under the
ADA
is to show that he/she can perform the essential functions of his/her job, with or without accommodation. Once an employee has established these three things, they are entitled to the protections of the
ADA
.
The recent amendments to the
ADA
expand the coverage of the
ADA
by de facto overruling two major Supreme Court decisions that Congress found had improperly narrowed the scope of the
ADA
. In Sutton v. United Airlines, Inc., the Supreme Court held that the above analysis to determine if an individual was disabled had to be conducted by taking into account any mitigating measures the employee used. So if, for instance, the employee had a bipolar disorder, and they took medicine for this disorder which rendered them not significantly limited in any major activity while they were on their medication, they would not be disabled under the
ADA
. The recent amendments direct that determination of whether an impairment substantially limits a major life activity must be made without regard to the effects of listed mitigating measures except for eyeglasses or contact lenses.
The other Supreme Court decision that the
ADA
amendments overturned was the decision in Toyota Motor Manufacturing, Ky, Inc. v. Williams, which had tightened the standards for “substantially limited” under the ADA. The Toyota Motor case held that courts must strictly construe the terms “substantially limited” and “major life activities” when determining the existence of a qualifying disability and that the employee must demonstrate that such disability prevents or severely restricts him/her from "doing activities that are of central importance to most people’s lives." The ADA Amendments provided that this standard set forth in the Toyota Motor case was too narrow and had the effect of preventing too many disabled employees from the protections of the Act.
The ADA Amendments also set forth the belief that the EEOC’s current regulation that defined the term “substantially limits” as “significantly restricted” should be revised to be more consistent with the overall purpose of the ADA which is to protect disabled employees from discrimination in the workplace.
Additionally, the ADA Amendments also set forth that:
1. Major Life Activity: There is a new statutory definition of "major life activity" now set forth in the Amendments. This adds to the major life activities listed in the Equal Employment Opportunity Commission’s regulations additional new major life activities. The Amendments provide that eating, sleeping, standing, lifting, bending, reading, thinking, concentrating, communicating, and the operation of "major bodily functions" (e.g., the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions) all constitute “major life activities”.
2. Regarded as Disabled: With regard to employees who claim to be “regarded as” disabled, the ADA Amendments changed the prior requirement that these individuals show that they were regarded as “substantially limited” in a “major life activity” to now only having to demonstrate that they are perceived to have an impairment but not that they are perceived to have an impairment that “substantially limits” them in a major life activity. This new provision will make it much easier for employees to utilize the “regarded as” provision and thus will likely result in increased “regarded as” claims.
3. Transitory and Minor Impairments: The new ADA Amendments also reiterated that employees with “transitory and minor” (transitory is defined as less than 6 months) impairments are not covered under the “regarded as” prong of the
ADA
.
4. Regarded as Disabled/Reasonable Accommodations: The Amendments also directed that employees who claim they are “regarded as” disabled rather than actually disabled are not entitled to reasonable accommodations under the
ADA
.
5. Episodic or Conditions in Remission:The new ADA Amendments provide that employees with conditions that are episodic or in remission can be considered “disabled” if such conditions would substantially limit a major life activity when they are active.
Employer Steps Going Forward
Employers should ensure that they have well-drafted ADA Accommodation Policies and that that they have well established procedures for engaging in “the interactive process” and for determining whether to provide disabled employees with the accommodations they have requested. It will also be important for employers to provide training to their managers to ensure that they adequately implement the requirements of the
ADA
and the recent amendments.
For assistance with the review of your ADA Policy to ensure compliance with these Amendments and/or for training regarding these new Amendments to the ADA, please feel free to contact us at info@hrlearningcenter.com or at 914-417-1715.
Department of Labor Issues Long-Awaited Final FMLA Regulations
On
November 17, 2008
the Department of Labor issued the long awaited Final FMLA Regulations. These regulations become effective on
January 16, 2009
.
The Final Regulations include many technical changes that may require additional revisions to employers FMLA policies as well as 
training so human resource managers and line managers understand and correctly implement all the necessary changes.
The following are some of the more significant changes required by the Final FMLA Regulations.
Notification: The new regulations require the employer to provide the employee with 4 separate notices:
- a general notice about the FMLA, (this can be provided in an employee handbook or when the employee is hired),
- an eligibility notice,
- a rights and responsibilities notice, and
- a designation notice.
The new regulations require that, absent unusual circumstances, the employee notify the employer of his/her unexpected FMLA-qualifying absence by using the employer's usual and customary call-in procedures. So, for instance, if an employer has a policy requiring an employee to report an absence prior to the start of his/her shift the employee would have to do this for unexpected FMLA absences as well.
Designation of FMLA Leave
One of the more noteworthy changes in the Final Regulations is the number of days that the employer has in which to notify the employee that the employer will be designating the leave as FMLA leave. Under the prior rules, the employer had to notify the employee that the leave would be counted as FMLA leave within 2 business days of the employer being advised of the need for the leave. Under the Final Regulations, the employer now has to provide the designation notice within 5 business days. In addition, under the prior rules, the employer could not designate the leave retroactively. Under the Final Regulations, the employer may designate leave as FMLA leave retroactively as long as the employer’s failure to designate the leave within the 5 days does not cause harm or injury to the employee. In addition, the employer and employee can mutually agree to retroactively count the leave as FMLA leave.
Medical Certifications
If the employer believes that the employee’s medical certification is incomplete (one or more of the applicable entries have not been completed) or insufficient (the information provided is vague, ambiguous or non-responsive), the employer must advise the employee in writing of the additional information that is required to either make the certification complete or sufficient. The employer is then required to provide the employee with 7 days to cure the deficiency. If the employee fails to cure the deficiency with the new medical certification, the employer may deny FMLA leave.
The revised regulations also broaden the persons who are allowed to contact the employee’s healthcare provider. The prior rules provided that only the employer’s healthcare provider could contact the employee’s healthcare provider and only with the consent of the employee. The Final Regulations provide that if the employer needs to clarify or authenticate the medical certification, the employer’s human resource professional, leave administrator or management official may contact the employee’s healthcare provider solely for the purposes of clarification of or authentication of the medical certification after the employer has provided the employee with the requisite 7 days to cure any deficiencies. The Final Regulations also reiterate that the employee’s supervisor may never contact the employee’s healthcare provider. These Final Regulations also now define “clarification” to be contacting the healthcare provider to help the employer understand the handwriting on the medical certification or understand the meaning of a response. “Authentication” is defined as providing a copy of the medical certification to the healthcare provider and requesting that they confirm that they were the person who completed the medical certification or authorized their representative to complete the form.
For conditions that last longer than a year, the revised regulations allow the employer to request a new medical certification each year.
Serious Health Condition Definition:
The final regulations also add some guidance to the six definitions of a serious health condition set forth in the original regulations. With regard to the definition of a serious health condition where an employee has seen a healthcare provider two times and is incapacitated more than 3 days, the Final Regulations require that the two visits to the healthcare provider must be within 30 days of the commencement of the period of incapacity. The Final Regulations also provide that the first of the 2 visits must occur within 7 days of the first day of the incapacity. With regard to the other definition of a serious health condition where an employee has been out of work more than 3 days and has seen a healthcare provider once with a regimen of continuing care, the one healthcare provider visit must be within 7 days of the first day of incapacity.
For serious health conditions that are chronic conditions, the Final Regulations require that the employee visit his/her healthcare provider at least 2 times per year. The Final Regulations also clarify that once an employee has been deemed eligible for FMLA leave by the employer, this determination is good for 12 months from the initial determination for all FMLA absences for the same qualifying reason.
Intermittent Leave:
The revised regulations also provide with regard to intermittent leave, that if an employer has reasonable concerns about an employee's ability to safely perform a job, the employer can now require an employee to provide a fitness-for-duty certification before the employee may return to work. Under the revised regulations, employers are now allowed to consider medical information obtained pursuant to the
ADA
and/or Workers’ Compensation in determining eligibility for FMLA.
Waivers and Releases:
There had been a split among the Circuits and some courts had held that employees could not waive past FMLA claims in releases. The Final Regulations make clear that employees may waive past FMLA claims in general releases without court or Department of Labor approval. However, future FMLA claims can still not be waived in general releases.
Perfect Attendance Awards or Bonuses:
The revised regulations now allow employers to take into account an employee’s FMLA absence in determining eligibility for perfect attendance awards or bonuses as long as it is done in a nondiscriminatory manner.
Service Member Family Leave:
On
January 28, 2008
President Bush signed into law the National Defense Authorization Act (“NDAA”). This law amended the FMLA to provide for a new type of leave known as Service Member Family Leave. The amendment provides that an eligible employee who is the spouse, child, parent or next of kin of a covered service member can take up to 26 weeks of job-protected leave in a single 12-month period to care for the service member. The Final Regulations define “next of kin” as the “nearest blood relative of that individual other than the covered servicemember’s spouse, parent, son or daughter, in the following order of priority: blood relatives who have been granted legal custody of the servicemember by court decree or statutory provisions, brothers and sisters, grandparents, aunts and uncles, first cousins, unless the covered servicemember has specifically designated in writing another blood relative as his or her nearest blood relative for purposes of military caregiver leave under the FMLA”. The Covered Service Member is defined as:
“A current member of the Armed Forces, including a member of the National Guard or Reserves, or a member of the Armed Forces, the National Guard or Reserves who is on the temporary disability retired list, who has a serious injury or illness incurred in the line of duty on active duty for which he or she is undergoing medical treatment, recuperation or therapy; or otherwise in outpatient status; or otherwise on the temporary disability retired list.”