In the News

WORK – LIFE BALENCE

Comment by Phyllis Towzey on Huffingtonpost article, 29 Feb 2016

 

Interesting article on maintaining that work-life balance. It also raises a few things to think about, for companies and employees. First, companies should make sure that if employees ARE answering emails and business texts after hours, that no violations of the FLSA overtime provisions are occurring. Also, with respect to who owns the contacts the employee has developed, this can be a gray area for both parties. Companies should consider having employees sign a a noncompete, nonsolicitation and confidentiality agreement so that the contacts made on the job using the company’s resources are protected. And employees who are asked to sign an agreement with restrictive covenants should negotiate to have a list of pre-existing contacts and business relationships specifically excluded from the agreement.

From the Huffington Post

The typical workday is long enough as it is, and technology is making it even longer. When you do finally get home from a full day at the office, your mobile phone rings off the hook, and emails drop into your inbox from people who expect immediate responses.

While most people claim to disconnect as soon as they get home, recent research says otherwise. A study conducted by the American Psychological Association found that more than 50% of us check work email before and after work hours, throughout the weekend, and even when we’re sick. Even worse, 44% of us check work email while on vacation.

A Northern Illinois University study that came out this summer shows just how bad this level of connection really is. The study found that the expectation that people need to respond to emails during off-work hours produces a prolonged stress response, which the researchers named telepressure. Telepressure ensures that you are never able to relax and truly disengage from work. This prolonged state of stress is terrible for your health. Besides increasing your risk of heart disease, depression, and obesity, stress decreases your cognitive performance.

We need to establish boundaries between our personal and professional lives. When we don’t, our work, our health, and our personal lives suffer.

2016-01-28-1454024589-7132377-FiveThingsYouDontOweYourBossHP2.jpg

Responding to emails during off-work hours isn’t the only area in which you need to set boundaries. You need to make the critical distinction between what belongs to your employer and what belongs to you and you only. The items that follow are yours. If you don’t set boundaries around them and learn to say no to your boss, you’re giving away something with immeasurable value.

Your health. It’s difficult to know when to set boundaries around your health at work because the decline is so gradual. Allowing stress to build up, losing sleep, and sitting all day without exercising all add up. Before you know it, you’re rubbing your aching back with one hand and your zombie-like eyes with the other, and you’re looking down at your newly-acquired belly. The key here is to not let things sneak up on you, and the way you do that is by keeping a consistent routine. Think about what you need to do to keep yourself healthy (taking walks during lunch, not working weekends, taking your vacations as scheduled, etc.), make a plan, and stick to it no matter what. If you don’t, you’re allowing your work to overstep its bounds.

Your family. It’s easy to let your family suffer for your work. Many of us do this because we see our jobs as a means of maintaining our families. We have thoughts such as “I need to make more money so that my kids can go to college debt-free.” Though these thoughts are well-intentioned, they can burden your family with the biggest debt of all–a lack of quality time with you. When you’re on your deathbed, you won’t remember how much money you made for your spouse and kids. You’ll remember the memories you created with them.

Your sanity. While we all have our own levels of this to begin with, you don’t owe a shred of it to your employer. A job that takes even a small portion of your sanity is taking more than it’s entitled to. Your sanity is something that’s difficult for your boss to keep track of. You have to monitor it on your own and set good limits to keep yourself healthy. Often, it’s your life outside of work that keeps you sane. When you’ve already put in a good day’s (or week’s) work and your boss wants more, the most productive thing you can do is say no, then go and enjoy your friends and hobbies. This way, you return to work refreshed and de-stressed. You certainly can work extra hours if you want to, but it’s important to be able to say no to your boss when you need time away from work.

Your identity. While your work is an important part of your identity, it’s dangerous to allow your work to become your whole identity. You know you’ve allowed this to go too far when you reflect on what’s important to you and work is all that (or most of what) comes to mind. Having an identity outside of work is about more than just having fun. It also helps you relieve stress, grow as a person, and avoid burnout.

Your contacts. While you do owe your employer your best effort, you certainly don’t owe him or her the contacts you’ve developed over the course of your career. Your contacts are a product of your hard work and effort, and while you might share them with your company, they belong to you.

Your integrity. Sacrificing your integrity causes you to experience massive amounts of stress. Once you realize that your actions and beliefs are no longer in alignment, it’s time to make it clear to your employer that you’re not willing to do things his or her way. If that’s a problem for your boss, it might be time to part ways.

Bringing It All Together

Success and fulfillment often depend upon your ability to set good boundaries. Once you can do this, everything else just falls into place.

What do you do to set boundaries around your work? Please share your thoughts in the comments section below, as I learn just as much from you as you do from me.

IN THE NEWS – FOCUS ON OLDER WORKERS

Most employers recognize their obligation to avoid discriminating against their employees based on sex or race, and are careful to include policies in their HR manuals that directly prohibit harassment or other forms of discriminatory treatment.  One group, however,  that feels increasingly discriminated against – and is not usually specifically addressed in employer policies — is the elderly. Elderly people often strongly believe that their age puts them at a disadvantage in the job market.

What is interesting is that statistically the elderly are actually less likely to lose their job than younger people are, but they are more likely to have difficulty getting another job if they are fired.

One of the difficulties facing elderly workers who feel that they have been discriminated against is that the bar for proving these cases was raised in 2009 when the Supreme Court decided the case Gross v. Financial Services Inc.  As a result of that case, a plaintiff in an age discrimination lawsuit must prove that age was the sole motivating factor for the adverse employment action, instead of having to simply prove it was one of the factors (which was the previous standard).

Because of this, it’s very difficult for a plaintiff to win an age-discrimination case, but employers should still be cautious when disciplining or terminating older workers. Because elderly people feel like they are often discriminated against, an employer should be careful to not appear to be taking age into consideration when hiring or firing. It’s hard to win an age-discrimination case, but because elderly people often feel victimized, they’re very likely to try. The best tactic is to always avoid even the appearance of discrimination.  Remember, the object isn’t to win lawsuits (after spending significant legal fees and costs, and disrupting your business operations); the object is to avoid being sued in the first place.

And it’s not only the elderly who perceive age discrimination in the workplace as widespread.  Congress views age discrimination as a real problem, especially in light of the Supreme Court ruling. In May, Congress held a hearing about age discrimination, and one proposed bill would return age discrimination cases to the old standard. Because of this, it’s very possible that changes in the law will make it easier for age discrimination cases to succeed.  You should be prepared. It’s always good practice to take every step to avoid appearing discriminatory, because the laws can change, and the fewer people accuse you of discrimination, the better.

Read more about the proposal and the hearing here:

http://www.floridatrialattorneys.net/blog/2012/04/congress-proposes-new-bill-to-reverse-limiting-age-discrimination-decision.shtml

http://www.huffingtonpost.com/2012/05/15/age-discrimination-unemployment_n_1518591.html

IN THE NEWS – RESUME, JOB APPLICATION . . . . AND FACEBOOK PASSWORD?

According to recent stories in the media an increasing number of employers are asking job applicants to either provide their login information for Facebook, LinkedIn and other social networking sites, or log onto their private account during the actual job interview. Others ask the applicant to accept a “friend” request from an HR representative or a recruiter.

The following are just a few of the news articles published on this topic recently:

http://www.cnbc.com/id/46792761/page/2/

http://www.wtsp.com/news/article/246040/250/Would-you-share-your-Facebook-password-during-a-job-interview

http://www.valleynewslive.com/story/17204725/facebook-password-needed-for-a-job-interview

http://www.cbsnews.com/8301-500395_162-57400973/should-job-seekers-open-up-their-facebook-page/

Although several states are considering introducing legislation that would limit a public employer’s access to private information on social networking sites, currently there are no laws preventing an employer (either public or private) from requesting access to an applicant’s social media site – or preventing the employer from refusing to hire an applicant who says no.

What type of information are employers looking for? Many are using a social network site as a replacement for character references and a background check. An individual’s Facebook page can reveal information about alcohol consumption, use of illegal drugs, inappropriate photos, and rants about a former employer, just to name a few potential disqualifiers. An employer has every right to make a no-hire decision based on the foregoing.

However, an individual’s Facebook page (or other social network site) may also reveal information the employer legally cannot factor into the hiring decision – information, for example, regarding an individual’s sexual orientation, age, race, marital status, national origin, disability, and religious beliefs. An employer who has access to this information and then decides not to hire the candidate risks being accused of making the decision for a discriminatory reason.

The best practice is for employers to avoid the temptation to request access to an applicant’s social networking sites. Otherwise, you may get more information than you intended.

IN THE NEWS – CHURCH SCHOOL’S RIGHT TO FIRE “CALLED” TEACHER UPHELD OVER CLAIMS OF DISCRIMINATION UNDER ADA

In a January 11, 2012 ruling, the U.S. Supreme Court held that under the “ministerial exception” to employment discrimination laws, grounded in the First Amendment, a “called” teacher fired by a Lutheran school could not challenge her termination as a violation of the American With Disabilities Act (“the ADA”).

The Plaintiff, Cheryl Perich, was employed as a teacher at a school run by Hosanna-Tabor Evangelical Lutheran Church and School, a member of the Lutheran Church Missouri Synod. Under the Synod’s rules, there are two types of teachers: “called” teachers and “lay” teachers. Although both types of teachers perform basically the same duties, called teachers must complete a course of theoretical study at a Lutheran college, pass an oral examination by a faculty committee, and be accepted by the church’s congregation as a called teacher. The teacher then receives the formal title “Minister of Religion, Commissioned.” Lay teachers are only hired by schools in the Synod when called teachers are not available.

Perich became a called teacher, and was employed by Hosanna-Tabor for a number of years. She then was diagnosed with narcolepsy, and took a medical leave of absence. When her physician cleared her to return to work, however, her employer advised her that a lay teacher had already been hired to finish out the year, and that she could not return at this time. The congregation of the church voted to offer her a “peaceful release” from her call, which included paying a portion of her health insurance premiums in return for her resignation. Perich refused to resign. She hired an attorney and demanded that she be reinstated in her position. Hosanna-Tabor responded by telling her she would likely be fired if she wouldn’t resign. She said she intended to “assert her legal rights,” and was terminated immediately thereafter.

The EEOC filed a lawsuit on behalf of Perich claiming that she had been wrongly terminated in violation of the ADA based on her disability, and in retaliation for exercising her rights under the ADA. Hosanna-Tabor argued that under the First Amendment the courts could not interfere with the employment relationship between a religious institution and one of its ministers.

The First Amendment provides, in relevant part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” According to Hosanna-Tabor, Perich had been fired for a religious reason – namely, her threat to sue the church, which was inconsistent with the Synod’s belief that disputes between Christians should be resolved internally.

In its ruling, the Supreme Court did not focus on whether the decision to terminate Perich was based on the purported violation of the Synod’s alleged religious tenet of resolving disputes internally, or whether she was terminated due to her disability. Rather, the Court held that analysis irrelevant, because “[r]equring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By employing an unwanted minister, the state infringes the Free Exercise Clause [of the First Amendment], which protects a religious group’s right to shape it’s own faith and mission through it’s appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause [of the First Amendment], which prohibits government involvement in such ecclesiastical decisions.”

The Supreme Court concluded: The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. Today we hold only that the ministe­rial exception bars such a suit.” In reaching it’s decision, the Court rejected arguments that term “minister” should be more narrowly defined to include only the head of a religious organization.

The interesting thing about this case is that it did not involve a direct conflict between discrimination law and church doctrine. It was not, for example, a challenge to the right of the Catholic church or an Orthodox Jewish seminary to ordain only men as priests and rabbis, respectively. Nor did it involve the right of a religious school to hire only individuals of the same faith. Rather, the factual circumstances in this case centered on whether a disabled employee could be refused reinstatement and ultimately fired under circumstances which, in the secular world, would constitute a violation of the ADA.

Indeed, the EEOC argued in this case that such a decision would open to door to widespread employment discrimination, including possible violations of everything from Whistleblower statutes protecting those who expose illegal activity, to child labor laws.

The Court dismissed those arguments as unduly alarmist, noting “[w]e express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tor­tious conduct by their religious employers. There will be time enough to address the applicability of the exception to other circumstances if and when they arise.”

IN THE NEWS – FEDERAL COURT RULES SEVERE OBESITY PROTECTED UNDER ADA

Firing an employee because they are severely overweight violates the Americans With Disabilities Act Amendment Act of 2009 (“the ADAAA”), according to a decision by a federal district court in Louisiana on December 6, 2011, denying an employer’s motion for summary judgment. The EEOC brought the case on behalf of Lisa Harrison, an employee who weighed 400 lbs when she was hired and weighed 527 lbs when she was fired, allegedly because her employer thought her excessive weight limited her ability to perform her job.

This is one of only a few court cases to tackle this issue since the ADA was amended in 2009, expanding the definition of an impairment that constitutes a disability. Under the new regulations, the definition of impairment does not include weight that is within a “normal range” unless it is the result of a physiological disorder. The EEOC (which investigates employment discrimination claims), states in its compliance manual for employers that although “being overweight, in and of itself, is not generally an impairment, . . . severe obesity, which has been defined as body weight more than 100% over the norm, is clearly an impairment.” The EEOC has also noted that other recognized disabilities, such as diabetes, hypertension or thyroid disorders, often go hand-in-hand with obesity.

Recently, the EEOC filed another obesity case in federal court in Texas against BAE Systems, Inc., alleging that the company fired employee Ronald Kratz, II, from his job as a material handler because he was morbidly obese. No ruling has been entered yet in that case.

It seems clear, however, that we can expect a growing number of obesity discrimination cases to be filed under the ADAAA. Some cases will involve individuals who clearly fit the definition of severe obesity. Whether the law applies in other cases, where the employee is simply overweight, will hinge on whether or not the employee’s weight is a result of an underlying physiological disorder. And still others will involve “perceived disability” – the law also protects individuals who, although they are not actually disabled, are discriminated against by their employer because their employer regarded them as having a disability. Accordingly, if a supervisor assumes that an overweight person is substantially limited in the ability to perform their job and discriminates against the employee on that basis, your company could be liable under the ADAAA regardless of whether the employee’s weight problem actually was severe enough to qualify as a disability.

More than one-third (33.8%) of Americans are obese, according to a study released by the Center for Disease Control (“CDC”) this year. And the number has been increasing steadily over the past 20 years. See http://www.cdc.gov/obesity/data/trends.html. The CDC measures obesity using height and weight to calculate a person’s body mass index (“BMI”). An adult with a BMI over 25 is considered overweight. If their BMI is 30 or higher they are considered obese. For example, an individual who is 5’9” and weighs 169 lbs. is overweight, according to the CDC. And if they weight 203 lbs. or more, they are obese. See http://www.cdc.gov/obesity/defining.html.

What does this mean for your business? It means roughly one-third of your workforce (and one-third of your job applicants) fall into the definition of obese. Those individuals may or may not be actually considered disabled under the ADAAA. But remember – even if they are not severely obese, they still may be protected under one of two other ADAAA qualifiers: (1) if their excessive weight is a result of a physiological disorder (not something you’ll be inquiring about during a job interview); or (2) if you perceive them to have a weight-based disability.

The bottom line: although weight is not a “protected class” like race, sex, age, national origin and religion under Title VII, it is being increasingly recognized by the courts as a disability under the ADAAA, a law which prohibits discrimination against individuals based on their disability. And the EEOC has made it abundantly clear that it views obesity as the new frontier for enforcement.

The best practice is to make sure all hiring and supervisory personnel in your organization are instructed not to make any employment decisions based on an individual’s weight or any stereotypes about overweight workers. Of course, employees must be able to perform the actual physical requirements of the job, but you should steer clear of making assumptions about an individual’s ability based on obesity. And employee requests for reasonable accommodations based on weight should be taken seriously.

IN THE NEWS – THE BUCK STOPS HERE ON HIRING

One way to avoid claims of discrimination in hiring is to use an independent contractor or recruiter to screen and interview potential employees, right? Wrong! In a decision rendered September 10, 2009, a federal court of appeals in New York ruled that an apartment complex could be held liable for violations of the Age Discrimination in Employment Act (“the ADEA”) when an independent contractor told an applicant he was “too old” for the job showing apartments. Because the apartment complex delegated the hiring process to a third party, the apartment complex could be held liable for its “agent’s” conduct, even if it had no knowledge that the discriminatory hiring practices were occurring.

The court pointed out that this ruling only applies if the outside firm or agent is hiring applicants to work directly for the employer. You will not be held liable if an independent contractor hired to perform services for your company discriminates against its own employees.

If you do decide to use an outside firm or agent to assist you in screening applicants for a position in your company, however, you should make certain they are following EEO guidelines

IN THE NEWS – WALKING THE TIGHTROPE – SUPREME COURT DECISION RAISES QUESTIONS FOR BUSINESSES ON TITLE VII COMPLIANCE

On Monday, June 29, the Supreme Court decided a hotly debated case attempting to reconcile the dual prohibition in Title VII of the Civil Rights Act against “disparate treatment” discrimination and “disparate impact” discrimination. Disparate treatment discrimination is the intentional different treatment of an individual or group of individuals in the workplace based on their race, color, religion, sex or national origin. Disparate impact discrimination occurs when a facially neutral employment practice has a disproportionally negative effect on the members of one of these protected classes. Title VII also provides, however, that liability for disparate impact discrimination does not exist if the employer can show that its practice was “job related for the position in question and consistent with business necessity.”

An example of the type of policy that has been upheld in prior cases under the disparate impact analysis would be weight and height requirements for firefighters – although those minimum requirements have a disparate impact on female job applicants, they are job related and consistent with business necessity, as the job requires the physical ability to carry an unconscious person out of a burning building. An example of a policy that failed the disparate impact analysis was a particular employer’s requirement that all job applicants have a high school diploma. This policy disproportionately eliminated minority applicants, but there was no evidence that having graduated high school bore any relationship to the ability to perform the job duties.

The case decided today, Ricci v. DeStefano, involved the use of a written and oral test to determine the eligibility of firefighters in the city of New Haven, Connecticut, for promotion. Under the City’s rules, an available promotion to captain or lieutenant could only be offered to individuals with the top three highest scores. The City and the consulting firm it hired to develop the test apparently went to great lengths to design a test that had content relevant to the job, and was nondiscriminatory. Nonetheless, when the test results were in, a disproportionate percentage of black and Hispanic employees taking the test scored lower than white employees taking the test. A public debate ensued and, ultimately, the City threw out the test results to avoid violating the disparate impact prohibitions of Title VII. A group of white and Hispanic employees who received high scores on the test and would likely have been eligible for promotion filed suit, claiming that discarding the test results based solely on a statistical analysis of the racial outcome constituted disparate treatment discrimination against them.

The U.S. Supreme Count (in a narrow 5-4 decision) held that by throwing out the test results the City failed to correctly apply Title VII’s disparate impact analysis – specifically, whether the test was job related and consistent with business necessity. After reviewing the testimony and other evidence presented at trial as to the content of the test and the steps undertaken by the consulting company to create it, the Court concluded that the test was job related and that there was no equally valid, less discriminatory alternative that the City had refused to adopt. Accordingly, in the words of the Court, there was no “strong basis in the evidence” to conclude that the City would have been liable for disparate impact discrimination if it had allowed the test results to stand. Therefore, the City’s conduct amounted to disparate treatment discrimination against the firefighters whose high scores were disregarded.

The challenge for employers in the aftermath of this decision is to find a balance between eliminating facially neutral policies that have a disparate impact on minority workers without inviting allegations that the very act of removing such policies itself discriminates against nonminority workers based on race. Great care should be taken to avoid implementing any employment practices that could have a disparate impact in the first place. Of course, as the City of New Haven discovered, it’s not always possible to predict whether a disparate impact will occur.

The financial consequences of a misstep can be devastating to a business. The New Haven firefighters test at issue in the case was administered to employees in 2003. The results were thrown out shortly thereafter, and six years of costly litigation ensued.

IN THE NEWS – FAIR PAY ACT EXTENDS TIME FOR CLAIMS

President Obama signed into law on January 29, 2009 the Lilly Ledbetter Fair Pay Act, extending the time period for filing of wage discrimination claims. This legislation was passed specifically in response to a 2007 decision of the U.S. Supreme Court dismissing as untimely an employee’s Title VII sex discrimination claim that for many years she was paid significantly less than her male counterparts for performing the same job.

Most discrimination claims require timely filing with the EEOC or applicable state agency. In Florida, claims under Title VII and/or the Florida Civil Rights Act must be filed with the EEOC within 300 days, and with the Florida Commission on Human Relations (the FCHR) within 365 days, of the incident giving rise to the claim.

While this rule makes sense with respect to discreet acts of discrimination, such as termination of employment, many critics of the U.S. Supreme Court’s decision in the Ledbetter case (including Justice Ruth Bader Ginsburg, who wrote a strong dissenting opinion in the 5-4 decision), have pointed out that because workers generally treat salary information as confidential, an employee may be unaware for years that a pay disparity exists. In the Ledbetter case the plaintiff, who had worked as a supervisor at a Goodyear Tire and Rubber Company plant for 19 years, started out at the same salary as her male counterparts. By the time she discovered the pay difference as she neared retirement, her salary was 40% lower than male supervisors, who had received significantly higher raises over the years.

Under the new law, the statute of limitations period is restarted every time the employee receives a paycheck.

As a practical matter, this decision means that more employees will have the opportunity to file wage claims under the sex discrimination prohibition in Title VII (which provides higher damages), and will no longer be limited to the remedies under the Equal Pay Act (which has a lower cap on damage awards and no provision for punitive damages).

IN THE NEWS – SUPREME COURT TAKES ON RETALIATION ISSUE

A significant employment law case involving retaliation under Title VII is on the docket for the U.S. Supreme Court, which opened its 2008-2009 term on October 6. Oral arguments will be heard on the case of Crawford v. Metropolitan Gov’t of Nashville. In that case the Sixth Circuit Federal Appeals Court held that an employee who is fired in retaliation for statements made during a company’s internal investigation of sexual harassment allegations falls outside the protection of Title VII.

In the underlying case, Plaintiff Vicky Crawford claimed that she was fired because of statements she made to the company’s H.R. representative when Crawford was questioned about sexual harassment allegations another employee had made against Crawford’s supervisor. Crawford was not the employee who made the original complaint. However, when called into H.R. and questioned, she confirmed that she too had been sexually harassed by the supervisor.

Crawford was fired shortly thereafter, and filed a lawsuit claiming retaliatory discharge in violation of Title VII, which prohibits retaliation against an employee because that employee “has opposed any practice made an unlawful employment practice by this subchapter [of Title VII],” or because the employee “has made a charge, testified, assisted or participated in any manner in an investigation, proceeding, or hearing under this subchapter.”

The court in the Crawford case held that even if Crawford’s employer fired her in retaliation for statements she made in the company’s internal investigation, that investigation was not an investigation “under this subchapter” because it was purely internal. In other words, no EEOC complaint had been filed, nor was any lawsuit pending.

That outcome, though counterintuitive at first blush, does have a certain logic behind it. The court in Crawford reasoned that if Title VII’s retaliation protection were extended to cover every internal investigation conducted regardless of whether any formal charges had been filed, employers would be less likely to conduct full investigations based solely on internal complaints for fear that they would be blanketing every employee interviewed with immunity from firing. And indeed, it is not difficult to imagine situations where nonperforming employees could take advantage of the fact that their supervisor has been accused by another employee and attempt to shield themselves from disciplinary action by confirming completely baseless allegations.

Employee advocates and some academics, on the other hand, view the outcome in Crawford as having a profound chilling effect on the willingness of employees to speak truthfully about a supervisor’s harassment if interviewed by H.R., rendering the company’s investigation completely ineffectual, and impeding the employer’s legitimate objective of ridding the workplace of sexual harassers.

It will be interesting to see how the Supreme Court rules on this case.

IN THE NEWS – CONGRESS EXPANDS ADA DEFINITION OF DISABILITY

The ADA Amendments Act of 2008, a compromise bill that expands ADA coverage to employees with a variety of disabilities previously excluded by the courts, has been passed by Congress, and it is anticipated that President Bush will sign it into law shortly.

According to the summary of the legislation posed on the Library of Congress’ online public access “Thomas” page (http://thomas.loc.gov/), the amendment:

Sets forth rules of construction regarding the definition of “disability,” including that: (1) such term shall be construed in favor of broad coverage of individuals under the Act; (2) an impairment that substantially limits one major life activity need not limit other major life activities in order to be a disability; (3) an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; and (4) the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of specified mitigating measures.

What does this mean for employers? Primarily, this means taking a closer look at how your HR policies define “disability,” taking steps to ensure compliance in your hiring, discipline, promotion and firing policies, and ensuring that the new criteria is used when viewing requests for accommodation or employee complaints under the ADA on a case-by-case basis.

As a practical matter, the amendment may bring clarity to gray areas that were previously the subject of judicial interpretation, such as whether an individual with cancer has a disability under the ADA, and whether employees who suffer from serious medical conditions that are controlled by medication – like diabetes and epilepsy – are eligible for coverage. Under the amendment, both would be entitled to protection. The amendment also lays to rest disputes over whether individuals with prosthetic devices, such as artificial limbs, are qualified individuals with a disability under the ADA. (They are.)

Whether the new amendment – which has been lauded by business groups and employee rights advocates alike – will reduce litigation over the definition of a covered disability or simply lead to new issues to be litigated remains to be seen.