Human Resources News & Insights

Why the new ADA’s an even bigger pain than you thought

ComputerGossip

The new ADA substantially expanded the pool of employees who might be classified as disabled. But there’s more: It will also affect how you handle FMLA leave and potential GINA violations.

As you know, the new Americans with Disabilities Act (ADAAA) recently expanded the definition of “disability,” meaning more people than ever qualify as disabled.

But that expansion has also affected other employment laws, including the Family and Medical Leave Act (FMLA) and the Genetic Non-Discrimination Act (GINA).

Here’s a look at just how the new ADA will affect your dealings with the FMLA and GINA, courtesy of Robin E. Shea of Employment and Labor Law Insider.

Family and Medical Leave Act

Under the old ADA, it took a lot for employees to qualify as disabled.

That differed greatly from the FMLA, where a “serious health condition” could be anything from cancer to morning sickness to substance abuse treatment.

But now the ADA’s expanded, and the qualifications for “disability” look a heck of a lot like what it takes to qualify as a “serious health condition” under the FMLA.

Translation: You’ll rarely be able to rule out ADA issues when dealing with the FMLA.

The relationship between the ADA and FMLA isn’t new —  for example, extending a staffer’s FMLA leave beyond the required 12 weeks qualified as a reasonable accommodation under the old ADA. That remains true under the ADAAA.

But now, your obligation to make a good-faith effort to help employees return to work after FMLA leave will almost certainly involve taking the ADA into account.

Example: In the past, if staffers couldn’t return from FMLA leave to a “substantially equivalent” job due to a medical condition, you either extended their leave or fired them.

But now, it’s on you to determine if a reasonable accommodation exists for their medical condition — either by altering the “substantially equivalent” job or restoring the worker to a similar but different job.

It’s also not wise now to fire a worker whose FMLA leave expires because of absences due to a non-work-related illness or injury.

Unlike the FMLA, ADA applies to all workers — regardless of length of service. Therefore, consider all reasonable accommodation options before terminating the worker.

Keep in mind these changes only apply to staffers who need FMLA leave for their own medical condition. The ADA changes don’t come into consideration for the serious health conditions of spouses or children.

Genetic Information Non-Discrimination Act

The new ADA also affects GINA, the bill that prohibits bias against staffers based on their or their families’ genetic info.

The area where the ADA and GINA will overlap: association claims.

Example: An applicant’s son has a congenital heart defect. The employer decides not to hire the candidate for fear that the applicant’s son will increase health insurance costs.

Not only does this violate GINA (by discriminating against an applicant based on genetic info), but it also qualifies as disability bias — the applicant wasn’t hired because he’s “associated” with a disabled person.

GINA and the new ADA also overlap for employment-related medical exams. The ADA allows firms to require post-offer medical exams as long as they’re required for all staff.

But now, GINA has altered that to require firms to include “safe harbor” language to the health provider, designed to prevent the health provider from asking questions about the employee’s medical history.

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  • marypeterson21

    The “Penny Health Insurance” is quite popular in California and New York. For example it offers the low income health plan. Also offers health insurance for individual with pre-exisiting conditions.

  • Getreal

    It amazes me how much the HR profession has evolved in the past 25 years. It always was a rather law-oriented profession, and it’s even more so now. To practice HR today one almost needs to be a paralegal. And it seems that almost all of the new legislation is geared to favor the employee. It’s getting tougher to run a business. I think it’s time to sell out and retire.