The following are some of the major changes implemented by the ADAAA:
- Under the ADA, a “disability” was defined as a “physical or mental impairment that substantially limits one or more of the major life activities of such individual.” While the literal definition of “disability” has not changed under the ADAAA, the new law does call for the term “substantially limits” to be interpreted consistently with the findings and purposes of the ADAAA, and will soon be issuing revised regulations on what that means.
- Under the ADAAA, the determination of whether an individual’s impairment substantially limits a major life activity is made without regard to the ameliorative effects of “mitigating measures” (medication, medical supplies, equipment), with the exception of prescription eyeglasses and contact lenses.
- The ADAAA provides an extensive list of “major life activities,” including caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. Also included are “major bodily functions” such as neurological, brain, and immune system functions.
- An impairment that is episodic or in remission is considered a disability if it substantially limits a major life activity when active.
Because the scope of “disability” has been expanded, the ADAAA has the practical effect of shifting the focus from “whether an individual has a disability,” to determining whether the individual was “qualified” for the position in question and whether the individual can be “reasonably accommodated.”
Employers should review their policies and procedures to take into account the ADAAA. In addition, employers should be aware that certain states have disability laws that are already more expansive than the ADA (e.g., New York, New Jersey and California).
Employers Must Start Using Revised Form I-9
Employers must begin using a new Form I-9 beginning February 2, 2009. The form (which will be available on www.uscis.gov in the near future) reflects the USCIS interim final rule which was published in the Federal Register on December 17, 2008. The final rule streamlines the Employment Eligibility Verification (Form I-9) process by:
- Eliminating Forms I-688, I-688A, and I-688B (Temporary Resident Card and older versions of the Employment Authorization Card/Document) from List A;
- Adding to List A of the Form I-9 foreign passports containing specially-marked machine-readable visas and documentation for certain citizens of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI);
- Adding the new U.S. Passport Card to List A;
- Revising the employee attestation section of the form; and
- Making clear that expired documents are no longer considered acceptable for proof of identification or work authorization.
Employers who fail to begin using the new I-9 form by February 2, 2009 may be subject to fines.
The form should be used for new hires, as well as to re-verify any employee with expiring employment authorization.
New York Enhances Protections For Individuals with Prior Criminal Convictions
Effective February 1, 2009, employers are required to (1) provide a copy of Article 23-A of the Correction law to individuals subject to background checks, and (2) post a copy of Article 23-A in a visually conspicuous manner in an accessible location in the workplace.
Article 23-A of New York’s Correction Law requires employers to consider and balance various factors before terminating or refusing to hire individuals with prior criminal convictions (absent a specific legal prohibition on hiring applicants with a criminal history).
Employers who evaluate an applicant’s criminal history in accordance with the Article 23-A factors and hire such applicant in good faith are also afforded certain protections from negligent hiring claims under New York State Human Rights Law.
Copies of Article 23-A can be downloaded at www.labor.state.ny.us/agencyinfo/article23a.shtm.
New York Employers’ Use of Employee Personal ID Information Restricted
New York Labor Law Section 203-d, which became effective January 3, 2009, states that employers may not, unless otherwise required by law:
- Publicly post or display an employee’s social security number;
- Visibly print a social security number on any identification badge or card, including any time card;
- Place a social security number in files with unrestricted access; or
- Communicate an employee’s personal identifying information to the general public. The law goes on to state that “personal identifying information” includes an employee’s social security number, home address or telephone number, personal electronic mail address, Internet identification name or password, parent’s surname prior to marriage, or drivers’ license number.
The law imposes a civil penalty of up to $500.00 on any employer who “knowingly” violates Section 203-d, and states that “it shall be considered presumptive evidence that a violation of this section was knowing if the employer has not put in place any policies or procedures to safeguard against such violation, including procedures to notify relevant employees of these provisions.”
Employers should also be aware of N.Y. Gen. Bus. Law Section 399-dd, which provides additional safeguards for employee social security numbers, and prevents employers from:
- Intentionally communicating or making available to the general public an individual’s SSN (or any number derived from a person’s SSN);
- Printing an individual’s SSN on any card or tag required for the individual to access products, services or benefits;
- Requiring an individual to transmit his/her SSN over the Internet, unless the connection is secure or the SSN is encrypted;
- Requiring an individual to use his SSN to access an Internet web site, unless a password or personal identification number or other authentication device is also required to access the site; and
- Printing an individual’s SSN on any materials mailed to the individual (unless state or federal law requires the SSN to be on the document).
The law goes on to list exceptions to these rules, including (but not limited to) employment applications, COBRA forms and medical/welfare benefit claim forms.
New York Mini-WARN Enhances Protections for Employees Affected by Layoffs or Plant Closings
The New York State Worker Adjustment and Retraining Notification Act (“NY Mini-WARN”) becomes effective February 1, 2009, and imposes greater obligations than the federal Worker Adjustment and Retraining Notification Act (“WARN”).
NY Mini-WARN applies to employers with 50 or more full-time employees and requires such employers to provide 90 days’ advance written notice to employees affected by:
- a mass layoff, which results in an employment loss at a single site of employment during any 30-day period for at least 25 full-time employees who represent at least 33 percent of the employer’s full-time employees, or at least 250 full-time employees;
- a relocation, which occurs when an employer relocates “all or substantially all of [its] industrial or commercial” operations to a location 50 or more miles away; or
- a plant closing, which is defined as the permanent or temporary shutdown of a single site of employment (or one or more facilities or operating units within a single site of employment) if the shutdown results in an employment loss at the single site of employment during any 30-day period for 25 or more full-time employees.
Under NY Mini-WARN, employers who violate the law can be held liable for (1) back pay and employee benefits capped at 60 days of the violation, and (2) a civil penalty of $500.00 per day of violation.