At long last, the final ADAAA regulations are here

Although the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”) went into effect January 1, 2009, the EEOC just recently released the long-awaited final regulations. The new regulations, which are effective May 24, 2011, reflect the more than 600 public comments the Equal Employment Opportunity Commission (EEOC) received from a wide range of stakeholders.

What stays the same: The basic legal requirement that employers not discriminate against individuals with disabilities who are qualified for a job, with or without reasonable accommodations. The final regulations maintain the ADA’s definition of “disability” as a physical or mental impairment that substantially limits one or more major life activities; a record (or past history) of such an impairment; or being regarded as having a disability.

What changes: How these terms are interpreted – with many more conditions falling under the definition of “disability.” For example, impairment doesn’t necessarily have to prevent or restrict performance of a major life activity to be considered substantially limiting. In addition, episodic impairments, such as epilepsy, are considered disabilities if they limit activity.

“Under the new law, the focus is on how the person was treated rather than on what an employer believes about the nature of the person’s impairment,” the EEOC stated at the time the regulations were announced.

As with the existing ADA rules, you should err on the side of caution. It’s best to assume that most employees with physical or mental impairments are covered under the ADA … and make every effort to cooperate with impacted employees. For guidance on the many nuances of the new ADA rules, check out the handy guide available on the ADA website.

At long last, the final ADAAA regulations are here

How to steer clear of legal landmines in the new year

Protecting your business and “not getting sued” are topics that come up again and again on this blog. Whether you’re an HR professional, business owner or people manager, you’re all too aware how one legal misstep or compliance lapse can lead to much bigger trouble down the road.

That’s why my interest was piqued when I ran across a spot-on article by Susan K. Lessack, a labor and employment law partner with Pepper Hamilton LLP.

In her “Top Ten Things to Do in 2010,” Lessack discusses some important actions for minimizing the risk of employment-related litigation in the new year. In a nutshell, she suggests that you:

1. Make sure your company has a pandemic plan
2. Check your policies to ensure they’re a friend of GINA
3. Be sure you comply with the regulations issued by the Office of Federal Contract Compliance Programs (OFCCP) if you’re a federal government contractor
4. Ensure that disability leave policies do not contain inflexible provisions
5. Audit your wage-and-hour practices
6. Review relationships with independent contractors to evaluate whether those individuals are classified properly
7. Consider having a policy that advises employees who need a reasonable accommodation to request one
8. Review existing communication systems to ensure that employees have a way of raising concerns, and train manager to be effective in listening to and addressing those concerns
9. Develop a policy concerning employee use of social media, such as blogs, Facebook, MySpace and the like
10. Remember to document and communicate to employees any performance problems

Do yourself a favor and check out Lessack’s article for a quick snapshot of the best tactics for keeping your hands clean of any messy legal snafus. Many of the suggestions have been covered in this blog before, but they’re all points worth repeating. As are Lessack’s final words of advice for the litigation leery: “Remember that employees who feel they are treated fairly and with respect are less likely to bring claims against their employers.”

How to steer clear of legal landmines in the new year

Thanks to ADA, NBA may employ oldest player in history

Alan Rupe is a 59-year-old, 5-foot-ten attorney, who claims he can have his dream job as a professional NBA player and you can too, thanks to the Americans with Disabilities Act (ADA).

His strategy – leverage some recent court decisions “guaranteeing” equal employment rights under the ADA in his favor. All he needs to do is find a mental or physical disability protected under the ADA.

His plan – find an ADA protected mental or physical disability. After proving that he suffers from a covered disability, the NBA will essentially be forced to accommodate his limitations.

Sound crazy? Maybe crazy like a fox…

Take a look at the recent appeals decision of Tobin v. Liberty Mutual. Plaintiff Tobin claimed his bipolar disorder caused a lack of focus and concentration. He couldn’t complete work on time, prioritizing was difficult and stress worsened his symptoms.

After 11 months of Liberty working with Tobin to accommodate his disability, he was fired for “consistent poor performance” that the company said lasted for years. Long story short – Tobin sued. Tobin won more than $1 million.

In another case, Titus v. Home Depot, a store manager suffered an injury on the job that caused permanent damage. The manager requested Home Depot make “reasonable accommodations” for him that included a promotion. The company declined, the manager sued and won.

Under the ADA, employers must “provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, unless to do so would cause undue hardship.” (EEOC)

“Unless an employer can prove it would suffer “undue hardship” in the operation of the business, the employer is required to provide the requested accommodation,” says Rupe.

As it turns out, the older Rupe gets, the better chance he has at joining the NBA. Like I said, crazy like a fox.

New amendments to the ADA effective January 1, 2009, expanded the definition of disability. And as some experts predicted, reasonable accommodation requests have become more frequent and complicated.

Be prepared to handle and know how to document reasonable accommodation requests with tools like the ComplyRight ADA Administration System. With this supply of ADA forms, information and tip sheets, you’ll be ready to manage employee requests.

With Rupe on the way, maybe the NBA should look into it, too.

Thanks to ADA, NBA may employ oldest player in history