ADA and FMLA Updates
Two major changes in employment law went into effect in January: amendments to the Americans with
Disabilities Act (ADA) and revisions to the Family and Medical Leave Act of 1993 (FMLA).
President Bush signed the ADA Amendments Act into law in September, and the Act takes effect on January 1, 2009. The amendments overturn a series of Supreme Court cases, expanding the number of workers who are considered disabled under the ADA and increasing the number of employers that must make seasonable accommodations for these employees.
The ADA defines a “disability,” in part, as “a physical or mental impairment that substantially limits a major life activity of an individual.” The ADA Amendments Act emphasizes that this statute should be broadly interpreted to cover more individuals, and in particular, it directs the Equal Employment Opportunity Commission to interpret the term “substantially limits” in a future rulemaking. The amendments also provide commonly used examples for the undefined ADA term “major life activity,” such as seeing, eating, sleeping, and thinking. This provision also adds “major bodily functions” such as “functions of the immune systems, digestive, and neurological functions” to this list, which could lead to an expansion of workers considered disabled under the ADA. This Act also makes it easier for individuals to claim that they are disabled based on the perception of disability (the “regarded as” prong of the ADA).
The amendments state that the beneficial effects of mitigating measures such as medications or prosthetics will not be considered in assessing whether an individual has a disability (there is an exception for eyeglasses or contact lenses). They also clarify that an impairment that is temporary or in remission, such as epilepsy or cancer, can be considered a disability.
The ADA amendments will shift the focus of litigation from whether an employee is disabled (allowing more plaintiffs to be considered disabled) to whether there was discrimination in the workplace. They also leave many questions unsettled—for instance which disabilities will be considered to “substantially limit” a major life activity and what types of reasonable accommodations employers may have to provide.
A second development in employment law with important ramifications for small employers is the recently finalized revisions to the Family and Medical Leave Act of 1993 (FMLA). The new regulation takes effect on January 16, 2009.
Under the FMLA, employers with 50 or more employees are required to provide up to 12 weeks of unpaid leave for the birth or adoption of a child, or for a serious health condition. This new rule clarifies how FMLA leave affects the substitution of paid leave, perfect attendance awards, and light duty assignments. This rule also specifies that leave-takers with chronic conditions are required to have two doctor’s visits a year.
This rule requires four types of employer notifications and provides more time for these notifications. Employees are also required to provide sufficient and timely notification to their employers, removing provisions that allowed employees to notify their employers up to two full business days after an absence.
Employers can now require employees to comply with the employer’s call-in procedures for notification.
Employers can now ask for annual medical certifications for conditions that last over a year, and they can request re-certifications and fitness-for-duty certifications under certain circumstances. The rule also sets new timelines for medical certification requests. A new military caregiver provision also expands FMLA coverage for family members taking care of covered service members.
The Department of Labor did not reform two provisions recommended by the Office of Advocacy that are particularly burdensome for employers—the definition of a “serious health condition” and the “intermittent leave” sections.
If you have any questions on these changes to the ADA or the FMLA, please contact Assistant Chief Counsel Janis Reyes at (202) 205-6533.
