The Americans with Disabilities Act (the ADA) was amended effective January 1, 2009 to broaden the scope of the term disability. While the statutory definition remains “substantial impairment in a major life activity,” many of the Supreme Court decisions that had restricted the ADA’s application have been specifically overruled. The statute also includes a long list of “major life activities.” As a result, more individuals will be considered persons with disabilities and this will impact employers in several respects. Prior the amendment, employers won most ADA cases because the courts frequently found an employee could not prove a substantial impairment. The focus will move away from whether an individual has a disability and move to whether the employer can accommodate without undue hardship. This will require a better understanding of essential and non-essential functions of a job. Many employers don’t have written job descriptions and others may not have revised job descriptions since the ADA first went into effect in 1992. Now is the time to review job descriptions, implement a formal, written policy on accommodations in the workplace, and make sure your supervisors and manager are trained on the changes in the law. Human Resources needs to be well versed in the importance of engaging in the interactive process when a request for accommodation is made. In addition, there will be more scrutiny on any leave of absence practice or policy that has a “hard and fast” cut off on leave. The EEOC has a number of useful Guidance documents on its website, which are a good resource whenever accommodation issues, including the need for a leave of absence, are raised.
The Family and Medical Leave Act (FMLA) was amended in January 2008 to add two new types of family military leave. The FMLA regulations, which interpret the FMLA, were changed substantially in November 2008 and became effective January 16, 2009. There are many subtle changes to the regulations, but the primary issues employers need to know are as follows. First, the FMLA forms (including the certification forms and notice forms) have changed and expanded. Second, there is a new poster (WH 1420), which needs to be posted where employees and applicants can see it. Third, FMLA policies need to be updated and should include Form 1420 or all of the items in the poster. Fourth, the regulations now allow employers to apply their usual and customary leave application practices and permit an employer to require written leave applications and notice to a particular person/department of the need for FMLA leave, absent unusual circumstances. Fifth, the process for authentication and clarification of a medical certification has changed to allow more rights for employers. Finally, if you have not already done so by now, you need to add the family military leave provisions to your policy. These include up to 12 weeks of leave for a qualifying exigency resulting from an employee’s parent, child, or spouse being deployed to active duty, and up to 26 weeks of leave to care for an employee’s parent, child, spouse or relative for whom the employee is next of kin and who is injured in the line of active duty. The Department of Labor has a user friendly website, which includes the forms and a lot of helpful material for employers.