Friday, Jan. 23, 2009 | 2 a.m.
After years of changes to the Americans With Disabilities Act through controversial court decisions, Congress last year passed updated legislation clarifying the law.
Under the amendments most people living with disabilities will see improved or restored protection (the exception being those with poor eyesight who can use corrective lenses).
The legislative and regulatory changes went into effect Jan. 1. They are expected to make it easier for employees to be classified as disabled.
The changes are expected to have a significant effect on human resources departments of businesses with more than 15 employees across the country.
To help clarify the new rules, the law firm of Lewis and Roca last week hosted a seminar for clients on changes to the ADA as well as the Family and Medical Leave Act, which also has had significant alterations from recent legislation.
“These amendments to the ADA are going to restore it to what it was meant to be,” Lewis and Roca attorney Suzanne Martin said at the seminar. “More people are going to be allowed in the game.”
Among those with restored rights are those with a disability that is episodic or in remission, such as seizures. Courts had ruled to exclude people with these types of disabilities.
It also restores protection to those with disabilities who take advantage of corrective measures such as prosthesis, medication, mobility devices, hearing aids, oxygen therapy, assistive technology or those whose bodies or brains have adjusted to compensate for the disability.
The act basically redefines how a person with a disability is defined. Although the specific criterion is still being worked out by the Equal Employment Opportunity Commission, the legal community considers it likely the law will be applied similarly to state anti-discrimination laws in California, where disability is defined as something that makes it difficult to perform certain life activities.
“You really need to have a look at the changes in the law because they are pretty significant,” Martin said.
The changes mean employers will have to allow reasonable accommodations for a larger class of people, although many at the seminar said they have never stopped offering the accommodations to employees with disabilities for fear of lawsuits.
The new law still protects employers, though.
Businesses will not be forced to keep on a disabled employee if he or she cannot do the basic functions of the job, even with accommodations. To ensure the company receives this protection, though, it must have up-to-date, detailed and accurate job descriptions for all employees.
Martin suggested updating job descriptions annually and considering input from those doing the job when updating the description to ensure its accuracy.
Businesses also cannot be forced to provide accommodations that would substantially harm the business or other employees.
Lawyers are speculating that in the current economic situation, juries will be tougher on businesses accused of discrimination, so it’s important to follow the law.
It can be difficult to show that an accommodation requested by an employee is an undue hardship under the law, but there are a few hard and fast rules: The cost or difficulty of implementing the request would have to be significant, it would negatively affect other employees or it would be threat to health or safety.
The act also excludes the following ailments or behaviors from its definition of “disability: Exhibitionism, voyeurism, pedophilia, compulsive gambling, kleptomania, pyromania, psychoactive substance use disorders (resulting from current illegal drug use) and alcohol or drug addiction.
The act doesn’t change an employer’s obligation to interact with the disabled employee about reasonable accommodations, should the employee seek them.
In Nevada and other states under jurisdiction of the 9th Circuit Court of Appeals, it is still a violation of the act to fail to engage in the interactive process — discussing an employee’s limitations and potential accommodations — with a disabled employee.
For more information on reasonable accommodations, Martin suggested contacting the Job Accommodation Network.
The network is a service provided by the Labor Department’s disability employment policy office aimed at connecting businesses with experts on providing reasonable and effective accommodations for employees with disabilities.
The network can be contacted through its Web site: www.jan.wvu.edu.
Updates to the Family Medical Leave Act also took effect this month.
The changes to the medical leave act are also significant, providing increased flexibility for military families, Lewis and Roca attorney Howard Cole said.
As of Jan. 16, military families will receive expanded family leave entitlements, and the forms for employees, employers and doctors have been revised into an easy-to-use format.
Under the new rules, family members of those in the military are entitled to take up to 26 weeks (cumulative) in a 12-month period of unpaid leave to care for a covered service member with a serious illness or injury incurred in the line of duty or on active duty.
The families of members of the National Guard and Reserves will also be allowed up to 12 weeks unpaid leave to manage personal affairs while the service member is on active duty, to deal with short-notice deployment, military events, child care or school activities, counseling, rest and recuperation and postdeployment activities as well as any other activities agreed to by both the employee and employer.
Other changes to medical leave act include rules regarding “light duty” assignments. Under the new rules, time spent assigned to light duty can no longer be counted against an employee’s leave entitlement.
Employees will also now be able to waive claims in a settlement with employers without a judge’s consent. However, employees cannot be asked to waive future claims.
Another significant change allows an employer to deny perfect attendance awards or bonuses to those who have taken leave in that calendar year.
The rules also alter the time lines for reporting leave and the certification process.
For more information on changes to the medical leave act or for access to the revised forms, log on to www.wagehour.dol.gov.
The lawyers suggested that human resources directors contact their in-house counsel or the company’s lawyers to get more customized advice. Lewis and Roca offered to give a free in-depth seminar to the human resource departments of any of its existing clients.
Stephanie Tavares covers utilities and law for In Business Las Vegas and its sister publication, the Las Vegas Sun. She can be reached at 259-4059 or at [email protected]