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| Welcome | Welcome to the October issue of the Credential Check Examiner! Please feel free to offer your feedback. We appreciate hearing from our subscribers.
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| | Congress Amends Americans with Disabilities Act to Make Bringing Claims Easier | Effective Jan. 1, 2009, new requirements under the ADA Amendments Act of 2008 (the “2008 Amendment”) will make it easier for employees to bring ADA discrimination claims against their employers.
Since becoming law in 1990, the Americans with Disabilities Act has prohibited employers from discriminating against individuals based on their disabilities, and it has required employers to provide reasonable accommodations to otherwise qualified individuals, permitting them to perform the essential functions of their position.
Cases brought under the ADA have been reviewed by the U.S. Supreme Court on numerous occasions and the results have been generally pro-employer. However, the “2008 Amendment” will reverse the effects of a few of those decisions.
The 2008 Amendment specifies among its purposes rejecting the Supreme Court’s rulings in Sutton v. United Air Lines, Inc. and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams and to convey Congress’ expectation that the Equal Employment Opportunity Commission will revise its regulations to be consistent with the terms of the 2008 Amendment. The 2008 Amendment defines disability with greater specificity than the ADA to prevent courts from narrowing the definition in the future, and it will make it easier for employees to prevail on ADA claims.
To be protected under the ADA, an individual must have an impairment that “substantially” interferes with a “major life activity.” The 2008 Amendment defines major life activities by providing examples (i.e., walking, hearing, sleeping, standing, learning, thinking, working, etc.) and by identifying major bodily functions such as normal cell growth, digestive, bowel, bladder, brain, endocrine, reproductive functions, etc.
The ADA also prohibits discrimination based on a disability where the individual has a record of an impairment or is being regarded as having an impairment. The 2008 Amendment defines “regarded as having an impairment” to include situations where the employer perceives the individual as having an impairment regardless of whether the employer perceives that impairment as limiting a major life activity. An exception applies where the perceived impairment is minor and transitory (i.e., six months or less).
The 2008 Amendment also states that the standard created by the Supreme Court in Toyota for demonstrating that an impairment “substantially limits” a major life activity is inappropriately high and that it shifts too much of the focus from determining whether an employer has complied with its obligations under the ADA to whether the individual has a disability. Addressing this point, the 2008 Amendment provides that “[t]he definition of disability in this Act shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.” It further requires courts to interpret the term “substantially limits” consistent with the purposes of the ADA and to include an impairment that affects only one major life activity and to include “[a]n impairment that is episodic or in remission” if, when active, the impairment would substantially limit a major life activity. This is a significant change from how courts previously interpreted the ADA.
Finally, the Sutton court held that whether one has a disability should be determined in light of mitigating measures such as eyeglasses or medications. Therefore, an individual who suffered from seizures without medication was not considered “disabled” (and had no protection) under the ADA if medication would prevent seizures. The 2008 Amendment requires disability to be determined “without regard to the ameliorative effects of mitigating measures” such as medication, hearing aids, prosthetics, oxygen therapy, etc.
An exception remains, however, for the ameliorative effects of the mitigating measures of eyeglasses. Thus, employers and courts may still consider an individual’s ability to see as corrected by eyeglasses in determining whether an individual has a disability and protection under the ADA. However, the 2008 Amendment specifically prohibits employers from using selection criteria based on an individual’s uncorrected vision unless the employer can show it is “job related for the position in question and consistent with business necessity.”
The 2008 Amendment takes effect on Jan. 1, 2009. Employers need to understand their obligations under it and, more than ever, consult with an experienced employment attorney when ADA issues arise in the workplace.
This article was sponsored by the Legal Affairs Committee of the Human Resources Association of Greater Detroit. It was written by Claudia Orr, employment attorney at Plunkett Cooney in Detroit and Chair of the Legal Affairs Committee of HRAGD
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| | Communication Is Essential to Lead Workers through Current Economic Crisis | To maintain employee morale during times of financial crisis, senior leaders can allay employee fears by communicating clearly on topics such as pensions, 401(k) investments and even job security, according to communication experts at Watson Wyatt, a leading global consulting firm. "The current turmoil in financial markets is obviously a distraction to workers," said Richard Guinn, senior communication consultant at Watson Wyatt. "While companies cannot advise their employees about their investments, they can reassure them about the security of their defined benefit pensions, which are government-backed. Employers can also help their workers understand the implications of their 401(k) investment strategy, including the importance of saving, diversifying portfolios and taking a long-term perspective." Guinn suggests that senior executives should keep basic communication tenets in mind:
Be a leader, and realize that leaders don’t always have all the answers. Show your strengths. Reinforce the core competencies and values that make your organization successful.
Be visible. Credibility, conviction and passion are important messages that only actual presence can convey.
Use your team. Make sure the management team knows how and what to communicate, and that no one is a bystander.
Be coordinated. Coordinate your internal and external messages. Employees should hear company news from the company first.
Share responsibility. Be clear about what you want your managers and your workforce to do. People want to help, tell them how.
Be humane. Some employees are experiencing personal trauma from falling 401(k) account balances and home prices. Acknowledge their pain and make them aware of the resources at their disposal, such as the company's Employee Assistance Plan.
Source: Yahoo-Watson Wyatt
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| | Teachers are Fingerprinted for Checks into Backgrounds | Thousands of teachers and school employees throughout El Paso County began being fingerprinted so national criminal background checks can be done. A bill passed last year by the Texas Legislature requires that all educators certified by the state submit fingerprints for the background checks within the next three years. Others who also will be fingerprinted for the background checks include substitute teachers and aides, non certified employees hired by a school district after January 2008 and charter-school employees who work in a teaching or professional position that would require certification if they were employed in a traditional school district. While districts now do background checks through the Department of Public Safety and other agencies, digital fingerprinting that will be used for national criminal background checks will be done at individual campuses into November. Individuals who fail to submit fingerprints for the background check by the deadline will have inactive certificates and could lose their jobs, according to the State Board for Educator Certification. Under state law, employees convicted of certain kinds of serious crimes, including felonies against a person and sexual offenses, are ineligible for employment by a public school entity and will be fired. The fingerprinting "is another layer of protection to protect the kids," said Renee O'Donnell, executive director of human resources in the Canutillo Independent School District.
Source: El Paso Times
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| | Best Ways to Avoid the Office Bug | Every year employee’s watch as colds and the flu pass from co-worker to co-worker, hoping not to be next on the office's hit list and end up getting sick anyway.
A weak immune system or plain bad luck might be to blame. However, it is more likely that your colleagues unknowingly have a few bad habits that make it easy for a virus and its accompanying misery to spread in the office.
If you want to avoid falling victim this year, infectious disease specialists say extra vigilance about hand hygiene, among other precautions, might do the trick.
Once a person has come into contact with a virus, all they have to do is rub their noses, scratch the area around their eyes or touch their mouths and they're in trouble. Employees should try to avoid touching their face with unwashed hands.
If an office has several door handles between employee's desks and the bathroom sink, consider trying the old method of using a paper towel as a protective barrier or keep a bottle of hand sanitizer on hand. Since not everyone spends the recommended 15 seconds scrubbing, an alcohol-based gel is a good back-up method.
To help ward off infection consider regularly taking a multivitamin and focusing on some of the cornerstones of good health, such as regular exercise, proper nutrition and a good night's sleep, says Dr. Len Horovitz, a pulmonary specialist at Lenox Hill Hospital in New York. While some genetics are involved, immunity is a function of how healthy an individual is overall.
Source: Forbes
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| | Over 1 in 3 Employers Offer Financial Planning | Over a third of HR professionals report that their organization offers financial education to its employees, but many aren't sure how effective their offerings have been, according to a recent poll on HR.BLR.com and Compensation.BLR.com. When asked, "Do you offer financial planning education to your employees?" 37 percent responded "Yes." Of that 37 percent, 17 percent responded that offering financial education "has been beneficial" while 20 percent responded, "I'm not sure that it's made a difference.
Of the 63 percent who reported that they don't offer financial planning, 48 percent responded that they "have no plans to do so" while 16 percent indicated that they were "considering it."
A recent survey by CareerBuilder.com indicates that employees could benefit from better financial planning: it found that 47 percent of workers say they "always or usually live paycheck to paycheck just to make ends meet," up from 43 percent in 2007. Meanwhile, one-third of workers said that they did not participate in a 401(k) or other retirement plan.
"Nearly two-thirds of workers say they have a set budget each pay period, although 19 percent admit to typically going over it," Rosemary Haefner, vice president of human resources for CareerBuilder.com, said in a press release "Just like in business, going over a budget can have negative consequences on the bottom line. Workers who are facing challenges in this area may want to reevaluate where their funds are being allocated, so they can identify opportunities to reprioritize, recoup savings and lighten their financial burden."
Source: hr.blr.com
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| | Contact Information | If you are interested in obtaining additional information about these articles or the services offered by Credential Check Corporation, please contact one of the following individuals:
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