New Year brings significant changes to ADA and FMLA

Filed under: Contributed Columns |

During 2009, employers face the challenge of navigating changes to two prominent federal statutes — the Americans with Disabilities Act, which is modified by the Americans with Disabilities Act Amendments Act of 2008 (effective Jan. 1), and the Family Medical Leave Act, which saw changes to its regulations scheduled to take effect Jan. 16.
The changes are numerous.
The ADA, enacted in 1990, requires those employing 15 or more workers to make reasonable accommodation of employees with disabilities. A disability is generally defined as an impairment that substantially limits a major life activity, a record of such an impairment or being regarded as having such an impairment.
Application of the ADA proved complex, and the ADAAA was enacted to broaden the scope of its protection. In the words of the ADAAA, it is intended to rectify court interpretation of the ADA that “created an inappropriately high level of limitation necessary to obtain coverage” and excludes from coverage “people with a range of substantially limiting impairments.”
Most significantly, the ADAAA directs the EEOC to revise the regulations addressing the definition of “substantially limits,” a phrase key to setting the scope of persons under ADA protection.
The amendments also reject court precedent and current EEOC regulations that define the phrase “substantially limits” as meaning “significantly or severely restricted”; further opening the door for broader coverage.
The amendments clarify the definition of “major life activities,” setting out non-exhaustive lists that include a number of activities previously recognized by the EEOC and also recognizing activities not previously identified by the EEOC.
In one of many changes that reject U.S. Supreme Court precedent, the ADAAA states that mitigating measures other than “ordinary eyeglasses or contact lenses” are not to be considered when determining if a disability exists. Thus, in cases where medication controls symptoms associated with an illness, the person may nonetheless be considered to suffer a disability and benefit from the protections of the ADA.
Also, the ADAAA clarifies that episodic impairments or impairments in remission can still be considered disabilities if they would substantially limit a major life activity when active. Finally, the Amendments clarify the standard for being “regarded as disabled.”
Under prior interpretation, an employee had to prove that an employer regarded them as substantially limited in a major life activity because of a disability. Now, an employee need only show that he was discriminated against because of an actual perceived impairment, and need not show that the impairment limits or is perceived as limiting a major life activity.
“Regarded as disabled,” however, does not include employees with “minor” or “transitory” impairment, which is defined as lasting six months or less. Under the amendments, the EEOC has authority to issue additional regulations interpreting the statute, so 2009 should bring even more guidance on these issues.
On Nov. 17, the U.S. Department of Labor published its final regulations interpreting the FMLA, marking the first substantial changes since it was enacted. The most significant change to the FMLA (which provides unpaid leave where employees or their family suffer a serious health condition) is the extension of protections to relatives of those serving in the military.
The new “qualified exigency leave” allows eligible employees of covered employers to take up to 12 weeks of FMLA leave for a “qualifying exigency” arising from their spouse, child or parent being on or being called to active duty through the National Guard or Reserves in support of a “contingency operation.”
The regulations contain a specific and exclusive list of reasons for Q.E. leave which includes short-notice deployment (meaning an order of deployment given no more than seven calendar days before deployment) and time off to spend with a covered service member on rest or recuperation breaks for up to five days per break.
In addition, Military Caregiver Leave has been created, permitting an eligible employee, including a spouse, parent, child or next of kin, to take up to 26 workweeks leave during a single 12 month period to care for a covered service member.
In addition to being available to family of Reservist and National Guard members, Military Caregiver Leave is available to family of regular armed forces and a service member on a temporary disability retired list.
In addition to the changes affecting military families, the new regulations also: clarify the calculation of time of service to reach the 12-month eligibility requirement, providing that, with certain exceptions, periods of employment preceding a break of seven years or more are not counted; clarify and change how employers are required to calculate the amount of FMLA leave used by an employee, specifically addressing variable workweeks, holidays and overtime; require an employee to make “reasonable effort,” formerly “attempt,” to schedule treatment requiring intermittent leave so as not to unduly disrupt the employer’s operations, and provides general guidance that an employee must try to arrange medical treatment in a manner which accommodates the employer’s needs.
The new regulations also clarify employee notice requirements and provide employers with new tools for authentication and clarification of medical certifications and recertification and fitness for duty exams.
The changes to the ADA and FMLA are substantial and significant to employers within their scope of coverage. Every change in these acts cannot be covered here. If your company falls within the scope of either act, it is imperative that you fully review the changes and conduct an audit to ensure your compliance.
Christie McCall is an attorney with Holland & Hart and will be hosting a free seminar about the ADA and FMLA changes in 2009. To be included on the mailing list for that event, e-mail her at crmccall@hollandhart.com.