HR News

ADA AMENDMENTS TAKE EFFECT - WHAT YOU SHOULD KNOW

Effective January 1, 2009, the Americans with Disabilities Act (ADA) will undergo significant change. In these significant amendments, Congress sent a clear message to courts that they should focus less on whether a plaintiff is disabled and more on whether the employer complied with its ADA obligations.

Here are some examples of the changes:

Broader Interpretation of “Disability”. The Amendments will change the conservative approach that many courts have taken to these cases by confirming that the ADA’s definition of disability must be construed in favor of broad coverage to the maximum extent permitted by law.
Ignore Mitigating Measures and Remission. The Amendments state that, with the exception of “ordinary eyeglasses or contact lenses”, employers may not consider the impact of mitigating measures when determining whether an employee has a disability protected by the ADA. This means that a person who experiences no functional impairment when on medication now may be covered. The Amendments also provide that: “An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” These changes likely will result in millions more people being covered by the ADA and certainly will change the content of employers’ communications with employees’ health care providers.
Broader Interpretation of “Major Life Activity”. For purposes of the ADA, major life activities are now defined to include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. A major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. These definitions likely will result in more impairments being considered covered disabilities.
Expansion of “Regarded As” Claims. The ADA has always protected individuals whose employers incorrectly regarded them as being disabled. Courts historically have required plaintiffs with “regarded as” claims to prove their employer regarded them as being substantially limited in a major life activity. This proved to be a difficult standard for many plaintiffs to meet. Once the ADAAA takes effect, a plaintiff claiming his employer “regarded him” as disabled must prove only that his employer perceived him as having a mental or physical impairment.

If you have need for assistance in writing or reviewing job descriptions, please contact Servant HR at 317-585-1688.

THE INCREASING IMPORTANCE OF JOB DESCRIPTIONS

Job descriptions are essential to your business because they define job responsibilities and expectations. This is becoming increasingly true as federal and state statutes, regulations, agencies and court cases all look to them for issues of proof relating to various compliance and discrimination issues.

Job descriptions can be used in a number of ways in your business. First, a description will help an applicant decide if the job is of interest. Second, the description will help you interview the candidate to decide if the candidate is right for the position. Third, the job description can help you in training new employees. Finally, the description forms the backbone of your evaluation and review process.

Many businesses are tempted to skip this step as it is not an easy thing. But, job descriptions are an absolutely necessary part of your business. Job descriptions should be as clear and precise as possible, defining the core requirements, competencies, and responsibilities.

You should list the activities necessary to do each task. Be as detailed and precise as possible. If you aren't specific and meticulous in describing every important aspect of the job, the government and courts can assume that the employee can perform the job any way he or she wants, regardless of whether it complies with the company's policy. This is important if you ever have issues with the Americans with Disabilities Act (ADA), the Labor Department (Wage and Hour), the State Unemployment Compensation Administration, or just a disgruntled employee.

Job descriptions that contain detailed statements of the employee's job pass the accountability for that specific task or action to the employee. Pretty quickly you will stop hearing excuses. "I didn't know I was supposed to do that" or "that's not my job" are no longer viable responses. With a precise statement, each employee knows exactly what is expected and there is little room not to be accountable.

Clear, precise job descriptions will help you to both hire and manage your employees. If you have need for assistance in writing or reviewing job descriptions, please contact Servant HR at 317-585-1688.

INCREASED FOCUS ON IMMIGRATION AND THE I-9 FORM

Immigration is a "hot" topic in the news around the country. What used to pass for compliance simply will no longer do. Unites States Immigrationand Customers Enforcement ("ICE") has substantially increased penalties and stepped up enforcement efforts.

Did you know ICE has hired 171 additional worksite enforcement agents?
Did you know that DOL or DHS could fine your organization from $110 to $1100 per I-9 error for a first offense?

This means the accuracy of your I-9 Forms has never been more important!

When hired for a new job, employees are required to prove that they are legally entitled to work in the United States. Employers are required to verify the identity and eligibility to work for all new employees. An Employment Eligibility Verification form (I-9 Form) must be completed and kept on file by the employer.

In addition, employees must present original documents, not photocopies. The only exception is an employee may present a certified copy of a birth certificate. On the form, the employer must verify the employment eligibility and identity documents presented by the employee and record the document information on the I-9 form.

Acceptable I-9 Documents
Employees are required to present either one of the documents from List A or one of the following documents from List B and one of the documents from List C.

List A (Documents that establish both identity and employment eligibility)

United States Passport
Permanent Resident Card or Alien Registration Receipt Card (I-551)
Temporary Resident Card (I-688)
Employment Authorization Document (I-766, I-688B, or I-688A)
Foreign Passport with temporary I-551 stamp
For aliens authorized to work only for a specific employer, foreign passport with Form I-94 authorizing employment with this employer

List B (Documents that establish identity only)

Driver's license issued by a state or outlying possession
ID card issued by a state or outlying possession
Native American tribal document
Canadian driver's license or ID card with a photograph (for Canadian aliens authorized to work only for a specific employer)
School ID card with a photography
Voter's registration card
U.S. Military card or draft record
Miltary dependent's ID Card

List C (Documents that establish employment eligibility only)

Social Security account number card without employment restrictions
Original or certified copy of a birth certificate with an official seal issued by a state or local government agency
Certification of Birth Abroad
US Citizen ID Card
Native American tribal document
Form I-94 authorizing employment with this employer (for aliens authorized to work only for a specific employer)

No I-9 Documentation?

An employee who fails to produce the required document, or a receipt for a replacement document (in the case of lost, stolen or destroyed documents), within three business days of the date employment begins, can be terminated. An employee who shows a receipt has ninety days to present the original documents.

So, before you start your job search, make sure you have all your paperwork in order!If you need assistance on I-9 Compliance, please call Servant HR at 317-585-1688.