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Employers Beware: 1.) ADA Amendments Likely to Result in Increased Litigation and 2.) New Jersey Paid Family Leave

January 2009

Recent amendments to the Americans with Disabilities Act (the "ADA") are likely to substantially expand the definition of an individual with a disability and, consequently, result in significantly more litigation for the unwary employer. The ADA Amendments of 2008 (the "Act"), which became effective as of January 1, 2009, represents a Congressional effort to legislatively overrule several Supreme Court decisions that had previously limited the scope of the ADA.

The ADA prohibits discrimination against individuals with physical and mental disabilities in such areas as employment, public accommodations and transportation. Under the law, a person with a disability is defined as an individual with a physical or mental impairment that substantially limits one or more of the major life activities of such individual. Protection is also afforded to an individual with a record of such an impairment or an individual regarded as having such an impairment.

The Act was precipitated by earlier United States Supreme Court decisions, which had substantially narrowed the definition of who was entitled to protection under the ADA. By way of example, in Sutton v. United Air Lines, Inc., the Supreme Court held that, in determining whether or not an individual was disabled under the ADA, consideration had to be given to devices, medications, prosthetics and other measures that the individual could utilize to eliminate or reduce the impact of the physical or mental impairment. In the wake of that decision, many disability advocates and legal scholars alike questioned the Court's reasoning, concluding that the Supreme Court's interpretation was contrary to the legislative intent of the ADA. The Supreme Court's decision in Sutton, coupled with subsequent lower court rulings, resulted in additional narrow rulings, holding that individuals suffering from lifelong, serious conditions, such as epilepsy, diabetes, cancer, multiple sclerosis and bipolar disorder, were not individuals with a disability to the extent that their impairments could be controlled or temporarily relieved by medications.

As a result, Congress recently passed the Act, which legislatively expands the definition of an individual with a disability. Specifically, the Act provides that, in determining whether a physical or mental impairment substantially limits a major life activity, the ameliorative effects of measures such as medication or treatment cannot be considered. Likewise, the Act now defines with more precision what constitutes a major life activity. Thus, if an individual is substantially limited in performing certain major life activities, including activities such as reading, bending and communicating, the individual may be considered disabled under the ADA. The Act also expands the interpretation of major life activities to include biological processes, such as immune system, digestive, bowel, bladder, respiratory, circulatory and reproductive functions. The Act makes it clear that to qualify as a disability the impairment does not need to affect more than one major life activity.

As part of the effort to ensure that individuals suffering from disabilities were afforded protection by the ADA, the Act goes even further to state that individuals suffering from episodic impairments or impairments that are in remission are still entitled to protection, so long as the impairment would substantially limit a major life activity when active.

Although the Act was an attempt to provide clarity, it appears that it may result in more confusion for employers. With an expanded definition of an individual with a disability, employers are likely to be faced with an even greater challenge in determining if a particular employee is an individual suffering from a disability and what types of reasonable accommodations are required in a particular case. Thus, an employer evaluating its obligations under the ADA must beware as employees who previously were not entitled to the protection of the ADA may now be deemed individuals with a disability under the Act. Employers evaluating whether an individual qualifies for protection under the ADA should carefully review these new amendments.


Guidance for New Paid Family Leave May Soon Be Here

New Jersey recently enacted the Paid Family Leave law, which provides New Jersey employees up to six (6) weeks of paid family leave. This new law, which became effective January 1, 2009, has left employers with little direction for how to actually implement this new state-provided benefit. The New Jersey Department of Labor and Workforce Development has issued regulations that may answer some of the many questions that have been raised by employers.

Final regulations issued on January 5, 2009, address the taxability of paid family leave benefits and make it clear that such benefits will be taxed similarly to temporary disability benefits provided for under the New Jersey Temporary Disability Law. The regulations also define key terms used in the new law, such as "bonding," "care," "physical or mental impairment," "incapable of self-care" and "family leave."

Additional proposed regulations demonstrate the state's intention that paid family leave will function as a hybrid between temporary disability benefits and family leave under the federal Family and Medical Leave Act ("FMLA") and/or the New Jersey Family Leave Act ("FLA"). These proposed regulations indicate that the procedural process for applying for family leave benefits will be identical to the process for applying for temporary disability benefits. Likewise, the methodology of determining an employee's eligibility for family leave benefits will more closely resemble that of the FMLA and the FLA.

We can expect that these proposed regulations will be finalized shortly, as employees will be eligible to apply for paid family leave benefits commencing as of July 1, 2009.

For more information, please contact: Catherine P. Wells, (973) 530-2051 or via e-mail at:; Margaret O'Rourke Wood (973) 530-2063, or via email at: and Denise J. Pipersburgh, (973) 530-2090 or via e-mail at:

This Employment Law Alert should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer concerning your specific situation or any legal questions you may have.