The New Year typically brings with it changes, and this year, the employment law changes are coming fast and furious. On Jan. 1, 2009, new amendments to the Americans with Disabilities Act (ADA) will become law.
Fast on its heels, on Jan. 16, new regulations on the Family and Medical Leave Act (FMLA) will go into effect.
While both have many changes and nuances that must be clearly understood by your company’s human resource department, I’d advise you to bring your supervisors into the loop on the major points of the changes because supervisors are often the first point of contact with employees seeking accommodation for disability or illness.
As with all areas of employment law, you should reinforce to your supervisors that they consult with your HR department or legal counsel for additional information and specifics on company procedure.
Americans with Disabilities Act Amendments Act (ADAAA)
The ADA was passed in 1990 to limit disability-based discrimination. Since then, the Supreme Court has not defined an individual to be disabled under the Act if, through medication or other intervention, an individual’s disability is controlled. Congress, seeking to expand the definition of a disability, passed amendments that become effective Jan 1. These amendments focus much more on the accommodation of a disability than on determining if an individual qualifies as disabled. For example, a person with diabetes who has their condition controlled by insulin injections could now be considered disabled under the ADAAA because the condition itself affects "a major life activity."
Here are some key ADAAA points I’d advise your supervisors to know:
- The ADAAA changes the way employers need to view requests for accommodation.The emphasis should be placed on accommodation rather than on determination whether a disability exists. Of prime consideration should be:
If there is a reasonable accommodation that will permit the employee to perform his or her job.
If the reasonable accommodation imposes an undue hardship on the employer.
It remains important for supervisors to spot issues and bring them to the attention of the appropriate people within the organization, such as human resources. - When talking to an employee with a disability, supervisors shouldn’t ask questions about the condition itself. Instead, they should focus on job-related questions about the effect of the condition on the employee’s ability to do the job.
- The ADAAA requires that accommodation be approached with an open mind (i.e., not begin by questioning the existence of the disability). As before, employers must honor the disabled employee’s medical confidentiality and may not explain to other employees why any resulting change is being made.
- The supervisor may not be in a position to determine the legitimacy of a request for accommodation without medical input. Thus, employers can require employees to provide documentation from an employee’s health care provider about the disability and the need for accommodation. Supervisors should turn to their human resource professionals as they engage in this process with the employee.
Family and Medical Leave Act
FMLA was placed into law in 1993 and in general, provides up to 12 weeks of unpaid leave following the birth or adoption of a child; or to care for one’s self or an ailing spouse, child, or parent afflicted with a “serious health condition.” The new federal FMLA regulations clarify certain processes and include new provisions for active military personnel. Wisconsin has a separate Family and Medical Leave Act that was enacted in 1989 and this must be coordinated with the Federal Law.
Here are some key FMLA points your supervisors should know:
- A) Military service provisions
The new regulations allow up to 26 weeks of paid leave (rather than the standard 12) to care for a family member with a serious injury incurred during active military duty.
A new inclusion, "qualifying exigencies," enables the spouse, child, or parent of a person in the Armed Forces to take up to 12 weeks of leave to handle non-medical situations including those related to short-term deployment, military events, the need to make financial or legal arrangements related to deployment, or to attend counseling. - B) New clarifications on the FMLA process
To qualify as a "serious health condition," an employee or family member must now be incapacitated for at least three consecutive days and make at least two visits to a health care provider within 30 days of the period of incapacity. The first visit must occur within seven days of the first day of incapacity. In addition, for serious health conditions that are chronic, the individual in question must make at least two visits per year to their health care provider.
Notice for "foreseeable" events should be given 30 days in advance of the event. However, for those events or illnesses that are not anticipated, an employee is still responsible for notifying the employer of the need for FMLA. Simply calling in sick does not automatically grant an employee leave under FMLA. An employee must submit a leave request and medical certification within 15 days of the date he or she wishes to be considered for leave.
Direct supervisors cannot contact an employee’s health care provider about an employee’s medical certification. Only the company’s designated agent, such as a human resource professional, can perform that task.
Supervisors can aid in employee understanding by ensuring that the new FMLA poster is visible within the company and that the new forms are accessible to employees.
It’s complex to be sure, but it’s also critical that supervisors understand their role in compliance. In the end, it’ll make things run a whole lot smoother.
Rob Lapota is senior human resource manager for MRA-The Management Association Inc. in Waukesha.
