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Consider the following scenario. You are an employer to which the FMLA and ADA apply. One of your employees has been on unpaid FMLA leave due to medical conditions that have required ongoing treatment by a team of doctors. The employee has exhausted all of his sick leave and paid time off and is nearing the conclusion of the twelve weeks of unpaid FMLA leave to which he is entitled. You prepare a letter informing him that he must report back to work on the day after his leave has run out. Just before that date, however, the employee provides you with a doctor’s note stating that the employee requires additional medical testing as a part of his treatment, is unable to return to work at the present, and without the additional testing, it is unclear when the employee will be able to return to his job.

July 26, 2015 marked the twenty-fifth anniversary of The Americans with Disabilities Act (“ADA”), which created comprehensive federal protections for individuals with disabilities in all areas of public life, including the workplace, providing equal access to the same employment opportunities and benefits available to persons without disabilities. In signing the law into effect twenty-five years ago, President George H.W. Bush noted:

With today’s signing of the landmark Americans [with] Disabilities Act, every man, woman and child with a disability can now pass through once-closed doors into a bright era of equality, freedom and independence.

Thirty-five years ago, the Pregnancy Discrimination Act (“PDA”) established that it is unlawful for employers with fifteen or more employees to discriminate against pregnant workers “because of or on the basis of pregnancy, childbirth or related medical conditions.” That remains the basic law of the land today. What has remained unclear, however, is whether Congress, in passing the PDA, meant to compel employers to provide pregnant employees who are not able to work for medical reasons with accommodations, such as a light duty job, to the same extent as similarly situated, non-pregnant employees.

The Supreme Court recently heard oral argument in a case brought by Peggy Young against United Parcel Service (“UPS”) that is expected to provide some guidance as to whether and under what circumstances an employer may be required to accommodate pregnant employees under the PDA. Irrespective of what the court decides, however, covered employers should continue to ask whether such accommodations may still be necessary under recently implemented amendments to the Americans with Disabilities Act (“ADA”).

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The Americans with Disabilities Act (ADA) prohibits employers from discriminating against qualified individuals with disabilities.  The act was amended by the ADA Amendments Act (ADAAA) of 2008 with final regulations being issued in March 2011.  A significant change in the ADAAA was an expanded definition of “disability.”

For an impairment to be considered a disability under the pre-amended ADA, it had to prevent or severely restrict a person from performing activities central to most people’s daily lives.  With the enactment of the ADAAA and its subsequent regulations, it is now much easier for an impairment to be considered a disability.  To qualify as a disability, the impairment is only required to substantially limit one major life activity with life activities including reading, concentrating, communicating, working and thinking.

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January 2013 will mark the two-year anniversary the final regulations to the Americans with Disabilities Act Amendments Act or the ADAAA took effect.  As we move into the third year of these new “employee friendly” regulations, it would serve to take a moment to review the prior and current state of the law. 

The Americans with Disabilities Act (ADA) 

In July 1990, the Americans with Disabilities Act became law.  The purpose of the ADA is to provide for the elimination of discrimination against individuals with disabilities.  Disputes under the original ADA focused on the definition of disability.  Impairments such as mental illness or mental disability were often disputed with some level of success.  Interpretation centered on whether an individual was disabled rather than the accommodation an employer could provide to assist that individual in performing his or her job.