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The Equal Employment Opportunity Commission released the much anticipated Final Regulations implementing the ADA Amendments Act (ADAAA).  The ADAAA became effective on January 1, 2009.  The Final Regulations will take effect on May 24, 2011.

The Final Regulations “make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.”  The ADAAA expanded the definition of who is “disabled” and emphasized an employer should focus on whether employers complied with their obligations under the law and whether discrimination, in fact, occurred, not whether individuals are disabled under the law.  The Final Regulations provide rules of construction for employers to employ in determining if an individual is substantially limited, including:

·         An impairment need not prevent or severely or significantly limit a major life activity to be considered “substantially limiting,” but noting that not every impairment will constitute a disability;

·         Construing “substantially limits” broadly and in favor of coverage;

·         Determining whether an individual suffers from a disability does not require an extensive analysis, but it requires an individualized assessment;

·         Determining whether an impairment substantially limits a major life activity is made without regard to the ameliorative effects of mitigating measures, such as medication or hearing aids, but employers can consider the effects of ordinary eyeglasses or contact lenses on vision impairments;

·         Determining whether an impairment substantially limits a major life activity will not usually require scientific, medical, or statistical evidence;

·         Finding that an impairment that is episodic or in remission is a disability if it substantially limits a major life activity when active; and

·         Finding that impairments lasting fewer than six months can be substantially limiting.

Employers should train supervisors and managers on the employer’s obligations pursuant to the ADAAA and the Final Regulations and provide clear guidelines for interacting with employees and prospective employees.

On November 17, 2008, the US Department of Labor published its final revised regulations for the Family and Medical Leave Act.  The new regulations provide, among other things, much needed clarification relating to “qualifying exigency” and “servicemember” leaves which were added to the FMLA in January 2008. The new regulations take effect January 16, 2009, which requires employers to act quickly in revising policies, training managers and implementing the new requirements.

“Qualifying Exigency” Leave: This allows eligible employees to take FMLA leave to handle affairs involving the employee’s spouse, parent or child who is on active duty or called to active duty status.  “Qualifying exigencies” include short-notice deployment, attendance at military events and related activities, child care and school activities, financial and legal arrangements, attending counseling, rest and recuperation and attending post-deployment activities.

Qualifying exigency leave counts against the eligible employee’s 12 week allotment.  Additionally, intermittent and reduced schedule leave are available for qualifying exigencies.

“Servicemember” Leave:  Eligible employees may take leave to care for a covered relative with a serious injury or illness incurred in the line of duty “while on active duty” that “may render the servicemember medically unfit to perform the duties of his or her office, grade, rank, or rating.”  An eligible employee is entitled to up to 26 weeks “in a single 12-month period.”  Simply, this leave is available in subsequent 12-month periods for different covered servicemembers, or for the same covered servicemember if he or she contracts a new qualifying injury or illness.  The 12-month period begins on the first day of the leave and ends 12 months from that date, regardless of the normal method used by the employer to calculate FMLA leave.

“Eligible Employees”:  An employee is eligible for FMLA leave if he or she (i) has been employed by the entity for at least 12 months; (ii) has had at least 1250 hours of service in the 12-month period immediately preceding the start of leave; and (iii) is employed at a work site that has 50 or more employees within a 75 mile radius.  The new regulations provide that if an employee has a break in service lasting seven years or less, the employee’s service prior to the break must be counted when determining if the employee has been employed for at least 12 months.

“Serious Health Condition”: As to serious health conditions involving more than 3 consecutive, full calendar days of incapacity plus 2 or more days of treatment to a healthcare provider, the new regulations require the 2 visits must occur within 30 days of the first day of incapacity and the first in-person visit must occur within 7 days of incapacity.

As to serious health conditions involving more than 3 consecutive, full calendar days of incapacity plus a regimen of continuing treatment, the new regulations require the first in-person visit to occur within 7 days of the first day of incapacity.

As to serious health conditions involving “chronic conditions”, the new regulations require at least 2 visits for treatment per year.

This is only a summary of the new FMLA regulations.  For more information, please contact Robert Tandy at (201) 474-7103.

On July 1, 2009, United States Immigration and Customs Enforcement (“ICE”) announced that approximately 650 businesses nationwide have been targeted for in-person audits of I-9 employment eligibility verification forms.  Upon notification, businesses are given limited time to prepare for the audit by federal representatives.

This sudden announcement was the result of leads and information obtained by the ICE relating to violations of the law.  Businesses in various industries including restaurants, construction and trucking, and manufacturing have already been affected by the audits.

Employers are required to complete and retain a proper Form I-9 for each and every employee hired after November 6, 1986 to show that the employee is authorized to work in the United States.  The employer must continue to ensure employees are eligible to work as authorization documents expire.

For more information on an employer’s requirements contact Robert A. Tandy, Esq. at (201) 474-7103.

On June 18, 2009, the United States Supreme Court, in Gross v. FBL Financial Services, Inc., held that a plaintiff bringing a claim under the Age Discrimination in Employment Act (ADEA) must prove by a preponderance of the evidence that age was the “but for” cause of the employer’s adverse employment decision; and, more significantly, an employer need not demonstrate it would have made the same decision regardless of the employee’s age, even if the employee produces some evidence that age may have been a contributing factor in the decision. As such, the burden-shifting standard utilized in mixed motive Title VII cases does not apply to age discrimination claims under the ADEA.  Essentially, the Supreme Court just made it harder for a Plaintiff to prove a case under the ADEA than under Title VII.

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