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Federal Changes in the Americans with Disabilities Act (ADA)
On September 17, 2008, the House approved the ADA Amendments Act (ADAAA) of 2008 (S. 3406). The Bill was signed into law on September 25, 2008 and went into effect on January 1, 2008.
The ADA’s 3-part definition remains the same:
- A physical or mental impairment that substantially limits a major life activity;
- A record of such an impairment; and
- Being regarded as having such impairment.
ADA: Workplace Perfume & Cologne
Two recent federal court decisions concerning perfume and cologne in the workplace serve as a reminder to employers as to how confusing and broad ADA coverage can be. One decision involved an employee who had severe reactions to air freshener and a co-worker’s perfume. The court concluded that the employee was disabled because she had difficulty breathing and the symptoms were severe enough that they substantially limited a major life activity.
However, in another case, the federal court found that an employee, who complained of perfume exposure, was not disabled because the symptoms were similar to the common cold and were not severe enough to be a disability. Based on these two cases, it is important that managers evaluate not only an employee’s complaint, but also the extent of the symptoms.
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The ADAAA changes several key terms.
- Substantially Limits: The ADA Amendments Act states that the determination of whether an impairment substantially limits a major life activity must be made without regard to mitigating measures such as: medication, medical supplies, equipment, appliances; or use of assistive technology; auxiliary aids or services; or learned behavioral or adaptive neurological modifications. Prescription eyeglasses and contact lenses are excluded.
- Major Life Activities: The definition has been expanded and now provides a nonexclusive list of major life activities, including “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.” It also includes the “operation of major bodily functions,” such as functions of the “immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.”
- “Regarded As” Disabled: An employee may still bring a claim that he or she is “regarded as” disabled. They no longer need to show that an employer regarded him or her as “substantially impaired in a major life activity.” It is enough to show that an employer based an employment decision on an employee’s perceived impairment. Employees “regarded as” disabled are not entitled to reasonable accommodation. The Amendment clarifies that the “regarded as” prong of the disability definition does not apply to “impairments that are transitory and minor,” which it defines as those impairments that have “an actual or expected duration of six months or less.”
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- Reverse Discrimination Claims: The ADAAA Amendment specifically prohibits “reverse discrimination” claims based on a disability. Reverse discrimination claims were rejected by the courts in most cases; this Amendment simply makes it clearer.
Employers must continue to provide accommodations, unless it creates an undue hardship, to qualified employees. Managers should continue to engage in the interactive process with employees who request a reasonable accommodation.
Human Resources Professionals are encouraged to contact the County Attorney’s Office and/or their Labor Relations Representative concerning ADA-related issues.
Red Alert! New FMLA Regulations
The Department of Labor has published new FMLA regulations that take effect January 16, 2009. Highlights of the new regulations are as follows.
- Communication with Health Care Providers: An employee may now choose to provide authorization allowing their employer to communicate directly with their health care provider for the purposes of clarification and authentication of an incomplete or insufficient FMLA certification.
Important Note: Only a human resources professional, a leave administrator or a management official may contact the health care provider. Under no circumstances may the employee’s direct supervisor contact the employee’s health care provider.
- Fitness-For-Duty Certifications: FMLA allows employers to enforce uniformly-applied policies that require employees who take leave to provide a fitness-for-duty certification that they are able to resume work. The new regulations now allows employer to require that the certification specifically address the employee’s ability to perform the essential functions of the employee’s job. Additionally, where reasonable job safety concerns exist, an employer may require a fitness-for-duty certification before an employee may return to work when the employee takes intermittent leave.
- Medical Recertification: Even if a medical certification indicates that the employee will need leave for a period in excess of six months (i.e. for a lifetime condition), the employer is permitted to request recertification every six months in connection with an absence.
- Completeness of Medical Certification: The new regulations specifies that if an employer deems a medical certification to be incomplete or insufficient, the employer must specify in writing what information is lacking, and give the employee seven (7) calendar days to cure the deficiency.
- Employee Notice: The final rule modifies the current provision that has been interpreted to allow some employees to provide notice to an employer of the need for FMLA leave up to two full business days after an absence, even if they could have provided notice more quickly. An employee needing FMLA leave must follow the employer’s usual and customary call-in procedures for reporting an absence. • continued •
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