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THIS WEEK’S E-TIP: ADA Amendments Take Effect Thursday
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^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ THIS WEEK’S E-TIP: ADA Amendments Take Effect Thursday   The ADA has been substantially revised so that more people will be considered disabled and entitled to accommodation under the law. Find out how the law has changed and three steps you can take to ensure your organization is ready when these amendments take effect on Thursday.

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THIS WEEK’S E-TIP: ADA Amendments Take Effect Thursday This article is written by Bruce R. Alper and Timothy J. Tommaso, attorneys at Vedder Price. Vedder Price, www.vedderprice.com, is a national business-oriented law firm with over 260 attorneys in Chicago, New York, and Washington, D.C., who practice in all areas of business law with a particular emphasis on labor and employment law compliance and litigation. Since the Americans with Disabilities Act (ADA) became law in 1990, the United States Supreme Court and many lower federal courts have interpreted the statute in a way that has narrowed the population of persons who are considered to be “disabled” and therefore protected under the law. This is about to change. On September 25, 2008, the President signed the “ADA Amendments Act,” which becomes effective January 1, 2009. These amendments are intended to legislatively overrule a series of Supreme Court decisions and make it easier for persons to qualify for protection under the ADA. The legislation no doubt will accomplish that purpose. If your organization has 15 or more employees (including part-time and temporary employees), these changes will affect you beginning January 1, 2009. (Download a free Serious Diseases model policy with coverage of the ADA.) Definition of Disability Is Broader Courts have taken a hard line over the years in determining what constitutes a “disability.” Not anymore. The new amendments expressly require courts to construe the term disability “in favor of broad coverage … to the maximum extent permitted” by the ADA. This circular language portends ongoing litigation over what the ADA permits. However construed, the amendments clearly are intended to expand ADA coverage to more people. Further, the definition of “disability” now includes any impairment that is episodic or in remission if it would substantially limit a major life activity when active. Super Sized Definition of Major Life Activities A disability is a physical or mental condition that substantially limits “one or more major life activities.” The ADA amendments contain a list of “major life activities” including: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, breathing, learning, reading, concentrating, thinking, communicating, and working. A major life activity also includes the “operation of a major bodily function,” such as “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.” The intent is to ensure that a broad range of health conditions, including high blood pressure, diabetes, epilepsy and asthma, may be considered conditions that affect major life activities. Cannot Consider Mitigating Measures In a 1999 decision, Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), the U.S. Supreme Court held that mitigating factors, such as prosthetics and medication that ameliorate the adverse effects of a health condition, must be taken into account when determining whether an individual is disabled. The amendments reject that ruling. The new law explicitly states that corrective measures should not be taken into account in determining whether a person’s impairment substantially limits a major life activity. Thus the ameliorative effects of medication, mobility devices, hearing aids and prosthetics cannot be considered. The one exception is that “ordinary eyeglasses and contact lenses” can be considered when determining whether an individual has a disability.

^^^^^^^^^^^^^^^^^   Recommended Audio Conference   ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^     Understanding the New FMLA Regulations: What Changes on January 16 Presented by M. Lee Smith Publishers LLC Thursday, January 8, 2009 Thursday, January 29, 2009 11:00 a.m. to 12:30 p.m. Eastern Time The Department of Labor has finally announced its Family and Medical Leave Act (FMLA) revisions that go into effect January 16. Employers don’t have much time to prepare. In just 90 minutes, you’ll cover the most critical changes including: Clarifying the definitions of “serious health condition” Prohibiting supervisors from contacting the employee’s health care provider about medical certification Stopping employers from charging FMLA time to employees who return but can only perform light-duty work Allowing family members of wounded military personnel to take up to six months to care for recovering relatives Handling “qualifying exigency leave” during active duty Click here to learn more, register, or order the CD if you’re unable to attend. Or, call (800) 274-6774 and please be sure to mention Conference Code PPME..     Learn more = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =   EEOC to Define “Substantially Limits” The new amendments reject a 2002 U.S. Supreme Court interpretation, in Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002), that the phrase “substantially limits a major life activity” means an individual must have an impairment that prevents or severely restricts the individual from engaging in activities that are of central importance to most people’s daily lives. However, the law does not provide a new definition. Rather, the Equal Employment Opportunity Commission (EEOC) is required to define the phrase “substantially limits” in a manner “consistent with the purpose” of the amendments. Employers can be certain that the EEOC will take an expansive approach. (Editor’s note: The EEOC voted on proposed regulations to implement the ADA Amendments earlier this month, but the vote failed because the four-member Commission split two to two along party lines. Accordingly, the EEOC could not issue the proposed rule. As a result, it likely will be months before any guidance will be available.)  More Coverage for Persons “Regarded As” Disabled The ADA has always protected workers who were “regarded as” disabled, even if they were not actually disabled. Before the amendments, claimants needed to show that the employer regarded them as being substantially limited in a major life activity. Now, a “regarded as” claimant need show only that the employer perceived the individual as impaired, whether or not the impairment limits or is perceived to limit a major life activity. In a minor concession, the ADA excludes “regarded as” claims for transitory (six months or less) and minor impairments. A more significant clarification of the law is that an employer is not required to provide reasonable accommodation to individuals who are regarded as disabled but are not disabled in fact.  Conclusion There is no doubt that the amendments will result in more disability discrimination claims and more litigation to sort out the meaning of the new statutory provisions. In the short term, here are three things employers may want to consider: 1. Review your disability discrimination policies. They may require revision to comport with the new statutory definitions of “disability.” (Download a free Serious Diseases model policy with coverage of the ADA.) 2. Management and human resources professionals should continue to take disability issues seriously. Employers should train their management staff to be even more vigilant for disability and accommodation issues given that more employees will now be eligible for ADA protection. 3. Employers can expect more accommodation requests. Since more employees are now covered under the law, managers and HR professionals must treat all such requests seriously, continue to develop resources and protocols to respond to such requests and consult with counsel before deciding that an employee is not entitled to an accommodation.

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Announcing Personnel Policy Manual System + HR Matters Tools & Resource Center From Your E-Tips Editors For over 36 years, many of our subscribers have referred to the print and CD versions of our Personnel Policy Manual as their “HR Policy Bible.” Now, we’ve gone one step further and developed the ultimate policy and compliance solution: Online version of the “HR Policy Bible” Complete resource center All supporting databases: research, newsletters, Q&A Available 24/7 Full legal documentation and HR best practices Learn more and create a free account.                                     Learn more

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Subscribers to the Personnel Policy Manual and HR Policy Answers on CD can find more information on the disability definition under the ADA in Serious Diseases, Chapter 203A, note 7. Not a subscriber? If you would like to order one of our policy chapters, go to: http://www.hrpolicyanswers.com. If you have any questions, please call us at 1-800-437-3735. We'll be happy to help you.

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