On September 25, 2008, then-President Bush signed the Americans with Disabilities Amendments Act of 2008 (ADAA or the “Act”). The Act, which took effect on January 1, 2009, significantly broadens the number of employees who are subject to the protections of the original Americans with Disabilities Act.

The ADAA retains the original definition of “disability” to include: (1) an impairment that substantially limits one or more major life activities; (2) a record of such an impairment; or (3) being regarded as having such an impairment. However, the ADAA instructs the court system to interpret this definition much more broadly.

For example, going forward, if an impairment that is in remission or occurs episodically substantially limits a major life activity when active, such impairment could be considered disabling under the new amendments. Further, courts will be prohibited from considering any mitigating measures, other than “ordinary eye glasses or contact lenses,” when determining whether an impairment is “substantially
limiting.” The ADAA has instructed the Equal Employment Opportunity Commission (EEOC) to revise its regulations to define “substantially limits” broadly, in keeping with the intent of the Act.

The ADAA also broadens the definition of a “major life activity,” specifically describing it to include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating
and working. The term “major life activities” now includes bodily functions relating to the immune
system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.

Finally, the ADAA broadens what it means to be “regarded as” having an impairment. Now, an employee can be “regarded as” having an impairment even if the employer does not perceive the impairment as limiting a major life activity. In other words, the employee need not prove that
the employer perceives him or her as incapable of performing a range of jobs. On the other hand, the ADAA clarifies that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation. Moreover, an individual will not be covered under the “regarded as” prong
if the actual or perceived impairment is “transitory” (duration of six months or less) or “minor.”

The overarching theme of the ADAA is a desire to expand the protections of the Americans with Disabilities Act to include as many individuals as possible. Consequently, courts will be expected to focus less on whether an individual is “disabled,” and more on whether employers are reasonably accommodating impaired individuals and are refraining from discriminating against them. Therefore,
employers must focus on conforming their policies to the requirements of the ADAA, retraining employees involved in assessing employee disabilities, broadening their views of when reasonable accommodations may be required, and carefully considering any adverse actions involving employees
who now may qualify for protection under the newly relaxed coverage standards of the ADAA.

For further information on these changes or assistance on addressing disability issues in your workplace, please be sure to contact SGR’s Labor and Employment Practice Group.

NEW REGULATIONS CREATE SIGNIFICANT CHANGES FOR FMLA

The United States Department of Labor has issued new regulations that significantly impact provisions
of the Family and Medical Leave Act (FMLA). Effective January 16, 2009, the FMLA imposes greater obligations on both employers and employees. The new regulations are intended to clarify certain existing provisions; promote better communications between employer and employee regarding initial requests for leave; and educate employees on providing appropriate and timely medical information needed to certify leave requests.

The new regulations span nearly 200 pages of the Federal Register. Among various other changes, the
new regulations impose three new notice obligations on employers — “rights and responsibilities” and “designation notices” as well as general notices of FMLA rights — even if employees are not eligible for FMLA benefits. The regulations better explain the terms “continuing treatment” and “chronic serious health condition” as contained within the FMLA’s definition of “serious health condition.” Additionally, the regulations address acceptable timing and authentication of medical certifications and provide clarification of defective medical certifications; allow employers to require employee notice in the “usual and customary” manner of the business; set forth rules on substitution of paid leave and designation of FMLA leave for required overtime; and clarify payment of awards or bonuses impacted by leave. The new regulations also provide much-needed guidance with regard to the FMLA’s Military Family Member Leave Policy and Military Caregiver provisions by clarifying the terms “qualifying exigency” and “next of kin,” and from whom medical certification may be obtained.

The changes mentioned above highlight only a portion of the extensive revisions to the FMLA. For
more information or answers to any of your questions, please do not hesitate to contact your SGR employment counsel.