Utah Bar Journal

I. American’s with Disabilities Amendments Act of 2008

Over the last decade, Congress has had a growing concern that the ADA of 1990 was not serving its intended purpose: to require state and local governments and private businesses with fifteen or more employees to provide reasonable accommodations to workers with disabilities and to eliminate workplace discrimination against the disabled. After watching a series of U.S. Supreme Court decisions limit the definition of “disability” under the ADA, Congress decided to act. On September 25, 2008, President Bush signed into law the Americans with Disabilities Amendments Act (ADA Amendments Act or the Act). The Act’s purpose is to provide a “clear and comprehensive national mandate for the elimination of discrimination” and “clear, strong, consistent, enforceable standards addressing discrimination” by reinstating a broad scope of protection to be available under the ADA. ADA Amendments Act of 2008, Pub. L. No. 110-325, § 2, 122 Stat. 3553, 3554 (to be codified at 29 U.S.C. § 705). Employers must understand the key changes the Act makes to the ADA and implement best practices to avoid costly claims.

A. The Act
Effective January 1, 2009, the Act makes several important changes that broaden the definition of disability under the ADA.

Shifting Court’s Focus to the Employer not the Employee
In Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), the Supreme Court held that the terms “Substantially” and “Major” in the ADA’s definition of disability “need to be interpreted strictly to create a demanding standard for qualifying as disabled.” Id. at 196-97. Under the Act, Congress rejected this standard and expressly found that the Williams holding “has created an inappropriately high level of limitation necessary to obtain coverage under the ADA.” ADA Amendments Act § 2(b)(5). Rather than focus extensively on the definition of disability, Congress instructs courts to focus on “whether entities covered under the ADA have complied with their obligations.” Id. Employers should expect a decrease in the number of ADA cases dismissed on summary judgment on the basis that the plaintiff’s impairment does not qualify as a disability.

Mitigating Measures Analysis Eliminated
Expressly rejecting the U.S. Supreme Court holding in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), the Act states that “[t]he determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures.” ADA Amendments Act § 4(a)(4)(E)(i). For example, an employee who is able to completely control his or her diabetes with medication would still be considered disabled under the Act if, without the medication, the employee is substantially limited in one or more major life activities. In other words, employees’ impairments are to be considered in their natural state, without regard to any medications or devices used to minimize or control the effects of the impairment at issue. Consequently, human resource departments need to engage in the “interactive process” to determine the true nature of the employee’s impairment, without the mask of mitigating measures. The Act does recognize, however, that the ameliorative effects of eyeglasses or contact lenses “shall be considered in determining whether an impairment substantially limits a major life activity.” Id. § 4(a)(4)(E)(ii).

Episodic Impairments
Under the ADA, courts have consistently held that impairments that are periodic or episodic in nature were not the types of impairments Congress intended to cover under the definition of disability. The Supreme Court has repeatedly directed lower courts to avoid hypothetical inquiries as to the severity of inactive impairments. See Williams, 534 U.S. at 198; Sutton, 527 U.S. at 482. The Act rejects this jurisprudence and now brings impairments that are “episodic” or in “remission” within the purview of the ADA’s definition of disability, so long as those impairments “would substantially limit a major life activity when active.” ADA Amendments Act § 4(a)(4)(D). Employers should be aware that this amendment under the ADA could substantially increase the potential plaintiff pool for ADA claims.

Expanding List of Major Life Activities
To constitute a disability under the ADA, an impairment must limit one or more major life activities. The original version of the ADA did not include a definition of major life activities, but instead charged the Equal Employment Opportunity Commission (EEOC) with enforcing this concept. The EEOC never defined major life activities, but created a list of what it believed constituted major life activities – caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. See 29 C.F.R. § 1630.2(i) (2009). The Act codified this list and added the following major life activities: eating, sleeping, standing, lifting, bending, reading, concentrating, thinking, and communicating. See ADA Amendments Act § 4(a)(2)(A). The Act also adds a paragraph entitled “Major Bodily Functions” to its list of major life activities, which includes functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. See id. § 4(a)(2)(B).

Substantially Limits Language
Under the Act, Congress directed the EEOC to define the phrase substantially limits “to be consistent with this Act, including the Amendments made by this Act.” Id. § 2(b)(6). The EEOC has yet to agree on a singular definition, but employers should anticipate a definition broad and reaching in scope.

The “Regarded As” Prong
A person was considered disabled under the regarded as prong of the ADA if that person was regarded as having an impairment that substantially limited a major life activity. A person who was regarded as or perceived as having such an impairment qualified as disabled, even if that person had no impairment at all, or an impairment that was not substantially limiting. Under the Act, an ADA plaintiff is no longer required to prove that the employer regarded the plaintiff as having an impairment that substantially limits a major life activity. Congress found this definition too restrictive. Now,

[a]n individual meets the requirement of being regarded as having such an impairment if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.

Id. § 4(a)(3)(A) (emphasis added). So can someone with a common cold fall under the regarded as prong of the ADA if their employer perceives the cold as an impairment? The Act guards against these potential “flood gate” claims by limiting regarded as impairments to impairments that are not transitory or minor in nature, and that last or are expected to last six months or less. See id. § 4(a)(3)(B).

Reasonable Accommodation
The Act provides that reasonable accommodations are only required for individuals who can demonstrate that they have an impairment that substantially limits a major life activity, or a record of such impairment. Accommodations need not be provided to an individual who is only regarded as having an impairment.

B. Best Practices Under the New ADA
The following tips will help ensure that Utah businesses comply with the ADA Amendments Act:

1. When management becomes aware, through the interactive process or otherwise, that an employee has an impairment, it should err on the side of caution in making the threshold decision of whether a physical or mental condition constitutes a disability under the ADA. Remember, Congress instructed courts not to over analyze the disability determination. Employers should act in line with this guidance, and focus on compliance.

2. Any determination of whether an employee has a qualified disability must be made without regard to mitigating measures, except in cases involving corrective lenses or contacts.

3. Under the Act, employees do not qualify for protection unless they can perform the essential functions of the job with or without reasonable accommodation. Management should engage in the interactive process to determine whether a requested accommodation is reasonable, and whether the employee is qualified to do the job.

4. Any employment decision must be based on legitimate business, non-discriminatory reasons. Such reasons should be supported by documentation to the extent possible.

5. Employment policies should be written stating that each employment decision involving an individual with a physical or mental impairment is decided on a case-by-case basis.

II. New Family and Medical Leave Act Regulations

After reviewing nearly 20,000 public comments, the United States Department of Labor announced new regulations to the FMLA of 1993. These changes, effective January 16, 2009, aim to provide predictability and clarity to a law that is now fifteen years old. Employment law practitioners – as well as businesses and human resource directors – need to understand these changes, which will affect both employers and employees in Utah.

A. FMLA Background
The FMLA “is intended to allow employees to balance their work and family life by taking reasonable unpaid leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition.” 29 C.F.R. § 825.101(a) (2009). As of last year, the Act also provides leave entitlements, and thereby job protection, for military families. See 29 U.S.C. § 2612(a)(1)(E) (West, Westlaw through P.L. Ill-2 approved 1-29-09).

The FMLA applies to companies that employ at least fifty people. See 29 C.F.R. § 825.104(a) (2009). The only exception to this threshold number is public agencies and schools, which are subject to the regulations regardless of numbers. See id. An employee is eligible and has protection under the FMLA after working for twelve months and 1250 hours. See 29 C.F.R. § 825.110 (2009) (noting that the “12 months an employee must have been employed by the employer need not be consecutive months” but the hour requirement is calculated during the previous 12 months).

B. Highlighted Changes
For those without time to read more than 700 pages published by the Department of Labor as its Final Rule, the following highlights identify the most notable changes to the FMLA this year.

Military Family Leave Entitlement
Military caregivers may take up to 26 weeks a year (instead of the usual twelve) to care for an injured service member. Leave is also available to a spouse, child, parent, or next of kin for any “qualifying exigency” related to active military duty including: short notice deployment, military events, child care, counseling, rest, etc. See 29 C.F.R. §§ 825.126-.127 (2009).

No Categorical Penalties
Under the FMLA, when an employee requests leave from work, the employer has a duty to give notice that the leave “is designated and will be counted as FMLA leave.” 29 C.F.R. § 825.208(b)(1) (2009). An employer who fails to follow notification rules may be liable but is no longer subject to categorical penalties of providing an additional twelve weeks of leave. Contra 29 C.F.R. 825.700(a) (“If an employee takes paid or unpaid leave and the employer does not designate the leave as FMLA leave, the leave taken does not count against an employee’s FMLA entitlement.”). This reflects the current law as stated by the United States Supreme Court in Ragsdale v. Wolverine World Wide, 535 U.S. 81 (2002), which invalidated the regulatory provision that would have required an employer to provide an additional twelve weeks of leave to an employee who had already taken thirty weeks that year. See id. at 86.

Light Duty
Time spent performing “light duty” does not count against FMLA entitlement. See 29 C.F.R. § 825.220(d) (2009). In other words, if an employee is performing a light duty assignment, the employee is not on FMLA leave.

Waiver of FMLA Rights
Employers may voluntarily settle or release FMLA claims without court or department approval, contrary to the Fourth Circuit holding in Taylor v. Progress Energy, Inc., 415 F.3d 364, 368 (4th Cir. 2005) (holding that an employee’s release of her FMLA rights was unenforceable). This clarification clears up confusion caused by a previous regulation instructing that “[e]mployees cannot waive, nor may employers induce employees to waive, their rights under FMLA.” 29 C.F.R. § 825.220(d) (2009). The change is also helpful for Utah attorneys because of the Tenth Circuit’s lack of controlling authority on the waiver of FMLA claims. See Jones v. Qwest Comm’ns Int’l, 2008 WL 1902670, at *1–2 (D. Colo. Apr. 28, 2008) (declining to “approve, disapprove, or otherwise pass on the propriety of the settlement voluntarily entered into by these parties” because no apparent purpose would be served). Even so, prospective waivers are still prohibited. This is clarified by new language under 29 C.F.R. § 825.220(d) (2009).

Serious Health Conditions
The new regulations do not change any definitions of a “serious health condition,” but do provide a specific timeline within which visits to a health care provider must occur. To find “incapacity and treatment,” the first visit to a health care provider must take place within seven days of the first day of incapacity; and unless there is a regimen of continuing treatment, a second visit must take place within thirty days of the incapacity. See 29 C.F.R. § 825.800 (2009). Additionally, the “periodic visits” required to find a chronic serious health condition has been clarified to mean at least two visits per year for the same condition. See id.

Substitution of Paid Leave
FMLA leave is generally unpaid, but – if allowed or required by the employer – an employee can choose to substitute paid leave for FMLA leave. While an employee is always entitled to unpaid FMLA leave, the employee must follow company terms and conditions to substitute paid leave. See 29 C.F.R. § 825.207 (2009). All types of paid leave offered by an employer must be treated the same (whether sick leave or vacation leave or another). See id.

Perfect Attendance Awards
Employers are allowed to deny perfect attendance awards to employees who took FMLA leave as long as all leave-taking employees are treated the same. See 29 C.F.R. § 825.215(c)(2) (2009).

Employer Notice
The passage of new FMLA regulations consolidated the employer notice requirements into one section. Employers have a duty to post notice of the FMLA generally either through posters or employee handbooks. They also have five days (instead of two) after FMLA leave is requested to give employees notice of eligibility, rights and responsibilities, and designation. See 29 C.F.R. § 825.300 (2009).

Employee Notice
Employees needing FMLA leave must follow usual call-in procedures and no longer have up to two days following an absence from work to request FMLA leave. If FMLA leave is foreseeable, the employee must give at least thirty days notice; if leave is not foreseeable, the employee must give notice “as soon as practicable,” which in most cases means the same day or next business day. 29 C.F.R. §§ 825.302-.303 (2009).

Medical Certification Process
The FMLA requires that employees submit a medical certification when they take leave because of their own serious health condition or the serious health condition of a family member for whom they give care. Pursuant to the new regulations, an employee’s direct supervisor may not contact the employee’s health care provider nor may employers ask for medical information beyond that required for the certification form. See 29 C.F.R. §825.307(a) (2009). Additionally, if an employee’s certification is incomplete, the employer must give written notice and allow seven calendar days to cure the deficiency. See 29 C.F.R. § 825.305(c) (2009).

Fitness for Duty Certifications
An employer may require certification before an employee returns to work if reasonable job safety concerns exist. Additionally, such certification may specifically address an employee’s ability to perform essential job functions. See 29 C.F.R. § 825.312 (2009). Where a fitness for duty certification is required, the employer must provide the employee with a list of essential job functions at the same time they designate FMLA leave. See 29 C.F.R. § 825.300(d)(3) (2009).

CONCLUSION
Due to recent legislative and regulatory changes, Utah businesses must be ever more aware of their responsibilities under both the ADA and the FMLA. Revised definitions, timelines, and procedures present challenges of compliance for employers, employees, and the lawyers who counsel them. Understanding these major changes and revisions will allow employment and business practitioners to properly counsel and advise their clients when inevitable compliance issues arise.