IN THIS ISSUE:

1. Feature Story: ADA Amendments Act Regulations Proposed By EEOC

2. Cathie's Corner: The Law Isn't The Only Reason To Give Employees Access To Their Personnel Files

3. The Auditors Are Coming...The Auditors Are Coming

4. Free Report: Compliance With The New HIPAA Data Breach Notification Rules

5. HR Soapbox: Hiring For Fit

AHI's We Couldn't Make This Up 

A member of the cleaning staff at a Maryland courthouse was shocked to learn that someone intentionally let the air out of her car's tire, which was parked in a prime spot near the building.  She was even more shocked to learn that the culprit was a judge!  Two jail officers witnessed the judge do it, and one recorded the incident on his cell phone.  Caught in the act, the judge admitted he had deflated the tire on more than one occasion.

The Complete Compliance Guide to Federal and State Law makes it easier for you to tackle today's numerous and complicated employment law challenges without having to incur unnecessary legal fees using a lawyer. With this comprehensive resource, you'll be prepared to answer tough legal questions on difficult human resource issues under both federal or state law .

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1. FEATURE STORY:
ADA AMENDMENTS ACT REGULATIONS PROPOSED BY EEOC

The ADA Amendments Act (ADAAA), which went into effect January 1, rejected the holdings in several U.S. Supreme Court decisions and portions of the Americans with Disabilities Act (ADA) regulations that Congress believed construed the definition of "disability" too narrowly.  Under the new law, the Equal Employment Opportunity Commission (EEOC) was expected to revise its regulations to conform to changes made by the Act; the agency published proposed regulations in the September 23 Federal Register. The ADAAA and the proposed rule make it easier for an individual to establish that he/she meets the ADA's definition of "disability."  Here are the highlights of the proposed rule.

Major life activities.  The ADAAA provides a non-exhaustive list of examples of major life activities: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.  The proposed rule adds three more: sitting, reaching, and interacting with others.

The ADAAA also says that major life activities include the operation of major bodily functions, including functions of the immune system; normal cell growth; and digestive, bowel, bladder, neurological, brain, circulatory, respiratory, endocrine, and reproductive functions.  The proposed regulation adds other examples: hemic, lymphatic, musculoskeletal, special sense organs and skin, genitourinary, and cardiovascular functions. 

Substantial limitation.  Determination of whether an individual is experiencing a substantial limitation in performing a major life activity is a common-sense assessment based on comparing an individual's ability to perform a specific major life activity with that of most people in the general population.  The proposed regulation states that temporary, non-chronic impairments of short duration with little or no residual effects usually will not be considered disabilities.

Mitigating measures.  The use of one or more mitigating measures must be ignored in determining whether an impairment substantially limits a major life activity.  The ADAAA provides a non-exhaustive list of examples of mitigating measures: medication, medical equipment and devices, prosthetic limbs, low vision devices (e.g., devices that magnify a visual image), reasonable accommodations, and behavioral modifications.  The proposed regulation adds surgical interventions that do not permanently eliminate an impairment. 

Episodic impairments.  The ADAAA and the proposed regulation specifically state that an impairment that is episodic or in remission meets the definition of disability if it would substantially limit a major life activity when active.  The proposed regulation provides examples of episodic impairments: epilepsy, hypertension, multiple sclerosis, asthma, diabetes, major depression, bipolar disorder, and schizophrenia.  Similarly, if an impairment such as cancer is in remission, but there is a possibility that it could return in a substantially limiting form, then this would meet the definition of "disability."

List of disabilities.  The proposed regulation identifies examples of impairments that consistently will meet the definition of disability: deafness, blindness, intellectual disability (formerly known as mental retardation), partially or completely missing limbs, mobility impairments requiring use of a wheelchair (a mitigating measure), autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia.  This is not an exhaustive list of examples.

The proposed regulation also provides examples of impairments that are usually not disabilities: the common cold, seasonal or common influenza, a sprained joint, minor and non-chronic gastrointestinal disorders, a broken bone that is expected to heal completely, appendicitis, and seasonal allergies that do not substantially limit a person's major life activities even when active.

Substantial limitation in working.  An impairment may substantially limit a person's ability to meet certain job-related requirements, even though it does not impose substantial limitations outside the workplace.  The proposed regulation says that an impairment substantially limits the major life activity of working when it substantially limits an individual's ability to perform, or to meet the qualifications for, a "type of work."  The concept of a "type of work" replaces the concepts of a "class" or "broad range" of jobs from the 1991 ADA regulation.  A type of work may include: commercial truck driving, assembly line jobs, food service jobs, clerical jobs, or law enforcement jobs.  A type of work may also be determined by reference to job-related requirements, such as: jobs requiring repetitive bending, reaching, or manual tasks; jobs requiring frequent or heavy lifting; and jobs requiring prolonged sitting or standing.

"Record of" a disability.  The rule clarifies that an employer's knowledge of an individual's past substantially limiting impairment relates to whether the employer engaged in discrimination, not to whether an individual is covered by the ADA.

"Regarded as" having a disability.  The proposed regulation states that "regarded as" coverage can apply if an employer takes a prohibited employment action based on an individual's use of a mitigating measure for, or the symptoms of, an impairment, even if the employer is unaware of the underlying impairment.

The "regarded as" provision is not triggered when an employer: asks whether an employee needs a reasonable accommodation; asks an employee for medical information as part of the reasonable accommodation interactive process when the disability or need for accommodation is not obvious; or seeks medical information to determine whether an individual poses a direct safety threat.

Most individuals who are screened out of a job because they cannot meet an uncorrected vision standard will meet the "regarded as" definition of "disability."

The public comment period for the proposed rule runs until November 23.

For more information on the ADAAA, read our Free Report, Understanding How The ADA Amendments Act Of 2008 Changes The Americans With Disabilities Act.

2. CATHIE'S CORNER: THE LAW ISN'T THE ONLY REASON TO GIVE EMPLOYEES ACCESS TO THEIR PERSONNEL FILES

There have been a lot of questions recently about personnel files and an employee's right to access them.  They've come from both sides of the desk; employers asking if they are required to provide access, and employees asking if they are guaranteed access.  I even had one employee asking if he could be granted access to a co-worker's file, which, of course, is a no-no....Continue the story. 

3. THE AUDITORS ARE COMING...THE AUDITORS ARE COMING  

It's no secret that the Obama administration is taking a tougher approach to violations of the Fair Labor Standards Act (FLSA) than its predecessor. Jani Eager, Workforce Management Consultant for Workforce Insight, Inc., and Ruben Rosalez, Department of Labor (DOL), Deputy Regional Administrator, Western Region, gave a crash course to attendees at the American Payroll Association's Annual Congress that highlighted common FLSA trouble areas and how you can survive an audit....Continue the story.

4. FREE REPORT: COMPLIANCE WITH THE NEW HIPAA DATA BREACH NOTIFICATION RULES  
 

Check out the new Free Report, "Compliance With The New HIPAA Data Breach Notification Rules," which provides a detailed analysis of the steps covered entities and business associates must take following a breach of unsecured personal health information, as per interim final regulations issued by the Department of Health and Human Services.  Learn how to determine whether an actionable breach has occurred under the Health Insurance Portability and Accountability Act (HIPAA), when notices must be delivered and to whom, what content notices must include, and what administrative actions are required.  

5. HR SOAPBOX: HIRING FOR FIT

Some hiring managers get so wrapped up in determining whether an applicant possesses the necessary skills/expertise/experience that they forget to assess how well the individual fits in with the corporate culture....Continue the story.