Changes to the ADA and FMLA in the New Year

Along with New Year’s resolutions and wishes, 2009 will be ushered in with major changes to the Americans with Disabilities Act (“ADA”) and the Family Medical Leave Act (“FMLA”). These changes will dramatically affect how Employers handle ADA claims and/or requests for FMLA leaves of absence.

AMERICANS WITH DISABILITIES ACT

In September 2008, President Bush signed the Americans with Disabilities Amendments Act of 2008, which will be in effect as of January 1, 2009. Under the original ADA, qualified individuals with a disability are offered certain protections in the workplace. Employers have relied on the United States Supreme Court’s decisions announced in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002). In Sutton, the United States Supreme Court explained that corrective and mitigating measures (i.e. eye glasses, hearing aids, etc.) should be considered in determining whether an individual is disabled. As such, employers have considered the use of such measures. In Williams, the Court explained that the terms “substantially limits” a “major life activity,” as used in the ADA’s definition of disability, “…should be interpreted strictly to create a demanding standard for qualifying as disabled. Williams, at 197.

These rules have now been changed. Through the Americans with Disabilities Amendments Act of 2008 (the “Amendments”), Congress broadened the scope of protection offered under the ADA and paved the way for more individuals to be a “qualified” individual with a disability. In so doing, Congress explicitly rejected the findings in Sutton and Williams. These Amendments signal a major shift in how courts will interpret the ADA, and thus, effect how employers should handle disability claims. Some of the significant changes include:

• “Substantially Limits” broadened: Currently, under the ADA, a person is deemed to be disabled if (a) he or she has a physical or mental impairment that substantially limits a major life activity; (b) if he or she has a record of such impairment; or (c) he or she has been regarded as having such impairment. The Amendments retain this definition; however, they expressly reject the narrow interpretation that the EEOC and the courts have used for “substantially limits.” The effect is that more employees will be found to be substantially limited in a major life activity.

• Mitigating Measures: Currently, employers may take into account the ameliorative effects of mitigating measures to determine whether an individual has a disability. For instance, an employee with a hearing a problem, which is fully corrected with a hearing aid, would not be considered as having a disability. Under the Amendments, employers may not consider the ameliorative effect of mitigating measures and the status of an employee must be evaluated without such assisting devices. There is an exception to this new rule; employers may consider ordinary eye glasses and contact lenses.

• Major Life Activities expanded: The Amendments added to the non-exhaustive list of major life activities and created a subcategory to include the “operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”

The above is only an overview of some of the changes that Employers must address. While broadening the scope of coverage for persons with disabilities, the Amendments also expressly rejected reverse claims of discrimination brought by non-disabled persons.

FAMILY MEDICAL LEAVE ACT

The Family and Medical Leave Act (FMLA) provides certain employees with up to 12 weeks of unpaid, job-protected leave per year. It also requires that such employees’ health benefits be maintained during the leave. On November 17, 2008, the Department of Labor (“DOL”) issued extensive new rules for the FMLA which will effect how Employers apply and administer FMLA leaves. These rules become effective on January 16, 2008. While the DOL’s summary of these new rules is over 700 pages long, below are some of the areas addressed by these rules:

• Military Caregiver Leave and Leave for Qualifying Exigencies for Families of the National Guard and Reserves: FMLA protections are expanded to family members caring for a covered service member with a serious injury or illness incurred in the line of duty on active duty. Similarly, families of National Guard and Reserve personnel on active duty are provided FMLA leave to manage their affairs upon certain qualifying exigencies.

• Medical Certification Process: The new rules change the timing and content for requests for medical certification and identify who may contact the employee’s health care provider.

• Serious Health Condition: The new rules add requirements for an employee to be considered as having a serious health condition and clarify situations in which an employee may be found to have a serious health condition.

• Professional Employer Organizations (PEO)/Joint Employers: The new rules include provisions to aid in the determination of whether a professional employer organization is considered a joint employer under the FMLA.

WHAT EMPLOYERS SHOULD DO

Because of these major changes, employers should:

• Review and revise, as necessary, Employee Handbooks and policies;

• With regard to the ADA, (1) review job descriptions; (2) define essential and non-essential/marginal job functions; (3) when engaging in the reasonable accommodation process, focus on helping the employee perform his/her essential job functions; and (4) timely document accommodation efforts; and

• With regard to the FMLA, (1) update the employee notification forms and posters (i.e. 5 in 1 poster); (2) update any checklists with the new time periods for such items as the employer’s designation of leave, requests for medical certification, and the employee’s notification and certification requirements; and (3) take into account the new changes for such items as the tolling provision of FMLA leave while the employee is on light duty.

The Schwarzberg & Associates Employment Law and Compliance Team has extensive experience in developing effective policies, procedures and proactive responsive measures to deal with a myriad of workplace issues. Please do not hesitate to contact one of our members; Steve Schwarzberg or Lisa Kohring at (561) 659-3300 to obtain more information about our firm and its various employment law compliance and defense services.