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I-9, FMLA, ADA overhaul: Are you ready?

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in Employment Law,FMLA Guidelines,HR Management,Human Resources,Leaders & Managers,Management Training

The year that the Society for Human Resource Management (SHRM) predicts will carry “the most sweeping HR-related changes in 30 years” starts with a bang in January 2009 as HR professionals must adapt to important changes to two key employment laws—the FMLA and the ADA—and replace their I-9 forms.

The arrival of the Obama administration and Democrat-heavy Congress is forecast to spark several changes to U.S. employment law. But this month’s changes come courtesy of end-of-term Bush administration revisions.

On the paperwork front, you’ll need to begin using the government’s updated Form I-9 by Feb 2. The revised form was released last month.

Family and Medical Leave Act (FMLA):
On Jan. 16, the first-ever regulatory changes to the FMLA take effect. While some changes favor employers, others make compliance a bit trickier. Some of the most important revisions:

  • Direct contact with doctor allowed. Employers can now directly contact an employee’s doctor to seek clarification about health details on an employee’s FMLA certification form. (Tip: Direct supervisors can’t make the call. It’s best left to HR.)
  • Review new definition of “serious condition.” The law revises the rules on what counts as a “serious health condition” that triggers a qualifying FMLA leave.
  • Extend FMLA to military families. Employees can take up to 26 weeks of FMLA leave each year to care for family members who suffered a serious injury or illness while on active duty. Plus, families of National Guard and Reserve personnel on active duty can take up to 12 weeks of FMLA leave per year for certain qualifying events.
  • More time to deliver notices: Employers now have five business days—instead of two—to send out FMLA eligibility and designation notices to employees.
  • Employees must give notice sooner. Previously, employees could give notice of their need for FMLA leave up to two business days after being out on FMLA leave. Now, they must follow their employers’ normal call-in procedures, unless unusual circumstances exist.

The ADA Amendments Act of 2008 (ADAAA): This collection of ADA revisions, effective Jan. 1, dramatically expand the number of Americans who would be deemed “disabled” under the law, and thus entitled to job protections and “reasonable accommodations” for their disabilities. Two key changes:

  • Requires a broad reading of “disability.” Employers and courts are directed to be generous when determining whether someone is disabled. So, courts are now more likely to side with employees who sue for ADA violations.
  • Takes “mitigating measures” out of the ADA picture. Thus, devices used to decrease the severity of impairments (medication, hearing aids, wheelchairs, etc.) can’t be considered when determining whether the person is a qualified “disabled” person. Glasses or contact lenses don’t count.

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