Vol. 22, No. 2, 18. Recent Changes to Federal Employment Laws Will Affect Utah Companies: Examining the ADA Amendments and New FMLA Regulations.

Authorby Christopher Snow and Sarah Campbell

Utah Bar Journal

Volume 22.

Vol. 22, No. 2, 18.

Recent Changes to Federal Employment Laws Will Affect Utah Companies: Examining the ADA Amendments and New FMLA Regulations

Utah Bar JournalVol. 22, No. 2March/April 2009Recent Changes to Federal Employment Laws Will Affect Utah Companies: Examining the ADA Amendments and New FMLA Regulationsby Christopher Snow and Sarah CampbellINTRODUCTION

Significant overhaul of both the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA) means that businesses nationwide, including those in the state of Utah, must understand and implement new practices related to the interpretation of disability and requests for leave. Changes to these two laws went into effect at the beginning of 2009.


    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.

    1. 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...

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