Employment Law Alert
January 19, 2009
Jill Fisher, Esquire ♦ Employment Law Practice Group
Zarwin ♦ Baum ♦ DeVito ♦ Kaplan ♦ Schaer ♦ Toddy ♦ P.C.
We hope you had, and continue to have, a happy, healthy and prosperous new year. Despite our wish, this year’s economic and political changes are likely to bring unheralded challenges to the employment landscape. The Boy Scouts’ motto: “Be prepared!” has never been more relevant. Here are some of the significant changes in federal employment laws and regulations that should be of interest, and perhaps concern, to employers and human resources professionals.
ADA AMENDMENTS ACT EFFECTIVE JANUARY 1, 2009
The ADA Amendments Act, which became effective January 1, 2009, expands the number of employees who can be considered disabled under the Americans With Disabilities Act. Here are some of the significant changes:
"Mitigating measures" (medication, prostheses, and similar ameliorative benefits) are not to be considered when determining if someone is disabled. (The only exceptions are eyeglasses and contact lenses.) So, for example, an employee with diabetes would be considered disabled without having to demonstrate that at any given moment in time, the disease was or wasn't controlled by medication.
"Major life activities" and other terms in the ADA don't need to be interpreted strictly and the "question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis. The amendment includes the following list of activities that constitute major life activities. If an employee can't perform one of the activities, he or she is automatically considered disabled.
Here's the list: caring for oneself, bending, performing manual tasks, speaking, seeing, breathing, hearing, learning, eating, reading, sleeping, concentrating, walking, thinking, standing, lifting, communicating and working.
“Major bodily functions" now include: functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. (The reference to "immune system" and "normal cell growth" indicates intent to include as disabled those with HIV or cancer, without regard to manifestation of the disease.)
Someone is “regarded as being disabled because of the discriminatory treatment he or she has suffered as a result of the misperception, without regard to whether the “regarded” ailment constitutes a disability. In addition, there need not be an accommodation for "regarded as" individuals and no "transitory" impairment (lasting less than six months) is a disability.
There's no doubt that the landscape of "the disabled" will be significantly enlarged by these and other amendments to the ADA. Unfortunately, however, it appears that the amendments will bring little clarity (or fewer lawsuits) to this complicated law.
REVISED FMLA REGULATIONS EFFECTIVE JANUARY 16, 2009
New Family and Medical Leave Regulations become effective January 16, 2009. While there are some substantive changes, which do not significantly change the overall FMLA landscape, certain clarifications and new forms should be helpful. Employers must ensure that their FMLA leave policies, procedures and forms are updated to reflect the requirements under the new regulations. Following are some highlights of the new regulations pertaining to non-military FMLA leave.
Eligibility
There is still the requirement that an employee must have worked at least 12 months and 1250 hours to be eligible for FMLA leave. However, the new regulations clarify the effect of a break in service in meeting the 12 month requirement. The new regulations set out a 7-year standard, so by way of example, an employee who worked less than 12 months during their current period of employment may still be eligible if, during the prior 7 years, he or she worked a total of 12 months.
Serious Health Condition
There are six definitions under the FMLA of a “serious health condition.” While they remain the same, the new regulations provide additional guidance:
For leave involving more than 3 consecutive, full calendar days of incapacity and 2 visits to a health care provider, the 2 visits must occur within 30 days of the period of incapacity, and the first visit must occur within 7 days of the start of the incapacity.
In the case of a serious health condition occasioned by 3 consecutive days of absence plus a regimen of continuing treatment, the first visit must occur within 7 days of the start of the incapacity and at least 2 visits to a health care provided are required.
Certification
Under the new regulations, the employer (but only an HR professional, leave administrator or management official—not a direct supervisor) may directly contact an employee’s health care provider to obtain a clarification of information provided on the certification form. The employer will be required to notify the employee in writing if the medical certification is incomplete or insufficient to make a determination of a serious health condition, and to specify the missing or insufficient information.
Employer Notice Obligations
The new regulations set out 4 mandatory notices employers must issue.
The current requirement that a general notice be posted and incorporated into handbooks (or, if there is no handbook, given to the employee at hire) remains.
A new requirement is that employers must issue a personalized “Eligibility Notice” within 5 days of either a request for leave or after learning that a leave may be FMLA-qualifying.
At the same time the personalized eligibility notice is provided, the employer must issue a written “rights and Responsibilities Notice.”
Within 5 days of receiving sufficient information to determine whether the need for leave is FMLA-qualifying, the employer must issue a written “Designation Notice.”
An employer may not count any leave against an employee’s 12-week allotment until it has provided all required notices. An employer may be liable for failure to provide the notices only to the extent that an employee suffers actual harm.
Employee Notice Obligations
Under the new regulations, an employee must follow the employer’s normal call-in procedures absent “unusual” circumstances. (This changes the prior regulation permitting employees to notify their employer of the need for leave up to 2 business days after an absence.)
Paid Leave
Employers may restrict the right to use any type of paid leave consistent with their policies for non-FMLA qualifying leave. So, for example, if an employer’s “sick leave” policy prohibits use of sick leave in less than full-day increments, then an employee would have no right to use less than a full day of paid sick leave regardless of whether the sick leave was being substituted for unpaid FMLA leave.
Light Duty Work
Under the new regulations, time spent performing light duty work does not count against the annual 12-week FMLA allotment and the employee’s right to job restoration is held in abeyance during the light duty period.
Waivers
Employees may now voluntarily waive their FMLA rights as part of a settlement or severance agreement without approval from the DOL, so long as they are not waiving any future rights under the FMLA.
There are other changes mandated by the new regulations pertaining to parental leave for adoption, leave during holidays, bonuses, etc. In addition, the new regulations address two new forms of military leave, one for military care givers and one for qualifying exigency leave.
REVISED FORM I-9 EFFECTIVE FEBRUARY 2, 2009
Beginning February 2, 2009, all employers must use a revised I-9 Employment Eligibility Verification form when hiring a new employee or re-verifying the work authorization of an existing employee. The new form implements changes in the Department of Homeland Security's interim rules.
Here are some of the new rules:
Employers may no longer accept expired documents.
In section 1, new hires will be required to attest to being either a citizen or noncitizen national of the U.S.
Forms I-688, I-688A, and I-688B are eliminated from List A.
The revised I-9 form is available at http://www.uscis.gov/. Instructions for completing the form are included in the download.
OTHER NEW REQUIREMENTS FOR EMPLOYERS
Other recent changes in employment laws and regulations include:
New requirements under the Mental Health Parity and Addiction Act for employers that offer mental health coverage;
Requirements for federal contractors to use the E-Verify system to verify that workers are eligible to work in the United States; and
New FACT Act regulations to prevent identity theft in the workplace.
A WORD ABOUT TODAY’S ECONOMY
There is no doubt that current economic issues have created a ripe environment for employment lawsuits. Job losses typically generate an increase in lawsuits, but the recent wave of mass layoffs is likely to spawn a tidal wave of claims. In addition to purely economic issues such as wage loss and loss of retirement benefits, now more than ever, attention is being placed on workplace discrimination issues and reductions in force.
As you can see, compliance will be a big issue for employers in 2009. To help reduce your risk of potential employment law claims, and to be prepared (like the Boy Scouts) to defend any claims should they arise, employers should:
Make sure they are up to date on changes in employment laws;
Prepare ahead for any downsizing or reductions in force;
Update employee handbooks, policies and compliance
practices;
Conduct court-mandated anti-harassment training.
Here's hoping that in 2009, you have resolved to remain positive in today's uncertain economic climate.
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(Note: The above is intended to be informational only. It is not intended to be, nor should it be taken as legal advice for any particular situation.)
For more information about the topics in this alert, or other employment matters, to inquire about training programs, or to obtain employment law forms please contact Jill Fisher, Esquire at jfisher@zarwin.com or 215-569-2800 x186.
