Risky Business

ADA Amendments Act of 2008

Our company, which is subject to the Americans with Disabilities Act, is in the process of adjusting our internal policies and procedures to comply with the ADA Amendments Act of 2008 (ADAAA). Does the ADAAA provide employers with a grace period to work out potential issues before an employer may be held liable under the law's new requirements?

No. The ADA Amendments Act of 2008 (ADAAA), which was signed into law on September 25, 2008, will take effect on January 1, 2009. The ADAAA does not contain a grace period or any other safe-harbor provision; thus, all covered employers will be required to comply with the ADAAA beginning on January 1, 2009. Generally, an amendment to an existing law increases the possibility of liability against those who fail to adequately prepare for the change. However, in the context of the ADAAA, the consequences for failing to anticipate the breadth of the changes could be severe because the ADAAA expands the scope and applicability of the ADA in several respects.

The underlying theme of the ADAAA was Congress' disappointment with the manner in which courts, specifically the U.S. Supreme Court, have improperly narrowed the broad scope of protection originally intended by the ADA. To that end, the ADAAA expressly overruled several U.S. Supreme Court opinions that limited the scope and applicability of the ADA. Further, the ADAAA expands the scope of the ADA by providing that the definition of 'disability' is to be construed in favor of broad coverage of individuals to the maximum extent permitted by law. The ADAAA also expanded the list of 'major life activities' and relaxed the 'substantially limits' requirement. These specific changes, coupled with Congress' directive that courts interpret the ADA broadly, will likely increase the number of people protected by the ADA. Consequently, the number of alleged ADA violations is also likely to increase. Therefore, employers must take care to be compliant with the ADAAA as of January 1, 2009.

To learn more about the ADAAA, read this article about the new law by a member of our Risk Management Group.

FMLA - Employer's Designation of Leave Notice

I recently received an employee's request for leave under the Family and Medical Leave Act. Am I required to give the employee notice of the company's position regarding the leave request?

Yes. The Family and Medical Leave Act of 1993 (FMLA) was enacted to balance the demands of the workplace with the needs of families by allowing covered employees to take reasonable leave for medical, health, or family reasons. Upon receiving a request for leave, employers are responsible for determining whether an employee is entitled to such leave under the FMLA, and, if so, to designate the leave as FMLA-qualifying. Although employers are required to notify their employees of their determination by using a designation notice, the time for providing the notice depends on the circumstances.

If the employer, immediately after receiving notice of the employee's request, has sufficient information to designate the leave as FMLA-qualifying, the employer may provide the employee with the designation notice at that time. In instances in which the employer needs more information before it can designate the leave as FMLA leave, then the deadline for providing a designation notice to the employee is five business days after the employer has obtained the necessary information to make the determination. Furthermore, the designation notice, which must be in writing, must specify whether the employee will be required to present a fitness-for-duty certification before returning to work and the number of hours, days, or weeks that will be counted against the employee's FMLA leave entitlement, if this figure is known at the time the employer prepares the designation notice. Since other requirements governing the preparation of designation notices vary depending on the facts of a particular case, employers must carefully review the law or consult a licensed professional. Otherwise, an employer's failure in this regard may be deemed an interference with, restraint on, or denial of the exercise of an employee's FMLA rights.