New regulations under the Family and Medical Leave Act were effective on January 16, 2009, and the amendments to the Americans with Disabilities Act were effective January 1, 2009. Employers need to take a number of steps to comply with the new requirements.
The following information was provided by Seyfarth Shaw, LLP. Please note that the following information is not legal advice nor legal guidance and should not be construed as such. Prior to making any policy changes, please contact your legal counsel.
FMLA
* Post the revised FMLA poster, making certain it is also accessible to applicants;
* Revise any FMLA handbook policies to reflect the many regulatory changes plus the servicemember amendments, and to clarify and limit the method by which employees must request FMLA leave;
* Modify current FMLA leave administration to start using: (i) the new DOL forms; and (ii) the new "continuing treatment" definition;
* Modify the medical certification process to permit direct contact with the employee's health care provider for authentication and clarification under certain circumstances;
* Coordinate FMLA leave with STD, workers' compensation, vacation and paid time off in a way that maximizes operational advantages;
* Revise or create job descriptions in order to get better medical information through the medical certification and fitness for duty certification processes;
* Consider changing how FMLA leave is measured (instead of the smallest increment used by payroll system, the smallest increment by which all other leaves are measured (but no greater than one hour increments);
* Review state family and medical leave and family military leave laws to determine if FMLA leave, including qualifying exigency leave and military caregiver leave, can be run concurrently; and
* Train those responsible for FMLA administration on the new changes.
ADAAA
* Develop an up-to-date reasonable accommodation policy;
* Develop or enhance accommodation procedures and documentation to ensure interactive dialogue and the best possible defenses in ADAAA litigation;
* Revise or create job descriptions to establish qualifications and essential job functions and effectively defend failure to accommodate claims;
* Review all other documents that describe qualifications or essential job functions to assure consistency with job descriptions;
* Reexamine hiring procedures, interview guidelines, and employment-related testing or screening mechanisms in light of new definitions of disability; and
* Train managers and human resources professionals on the reasonable accommodation process.
