2009 Brings Critical Changes in Employment Laws
By Kurt Barker, Jon Napier and Ron Roome of Karnopp Petersen LLP
Lawmakers have busily conspired to keep employers on their toes
in 2009. Recent—and significant—changes to
federal leave and disability laws offer somewhat of a mixed bag
for employers, expanding employee rights on the one hand, while
providing needed clarity to employers on the other. So
hang on to your seatbelts, here are just some of the more
significant changes coming next year.
Amendments to the Americans with Disabilities Act (ADA)
Expand the Scope of Protected Workers: Congress
enacted the ADA in 1990, in an effort to eliminate
discrimination and help level the playing field for workers
with disabilities. Employers with 15 or more employees
are prohibited from discriminating based on an actual
disability, a record of a disability, or a perceived
disability, and they must make “reasonable
accommodations” for disabled employees, as well.
(Similar Oregon laws apply to those with just six or more
employees.)
The ADA Amendments Act (ADAAA), effective January 1, 2009, will
significantly expand the scope of who is protected or
considered “disabled” under federal law. For
example, current U.S. Supreme Court decisions allow for
consideration of “mitigating measures” used by the
employee when determining whether an employee is disabled under
the ADA. In other words, if a diabetic employee
(we’ll call him “Bob”) is able to effectively
control his disease with insulin, he may not be protected as
“disabled” under current federal law.
The new ADAAA, however, specifically rejects the consideration
of “mitigating measures” beyond ordinary eyeglasses
and contacts. In other words, as of January 1, Bob may
appear fully functional—but he may now be protected as
“disabled” under federal law. If this seems
counter-intuitive, think of what might happen to Bob if an
employer fired him for taking breaks to administer
insulin. Under the old law, an employer could argue that
Bob was not legally protected as disabled. Under the new
ADAAA, Bob and his insulin breaks are likely legally-protected,
even though his condition is under control.
Wise employers tread cautiously and conscientiously when faced
with any potential disability issue, or any request or
potential need for accommodation. (Read: call your
lawyer.) If you do run afoul of the disability laws, the
ADAAA will make disability-discrimination or failure to
accommodate lawsuits much harder to defend.
New FMLA Regulations Help Clarify Medical and
Military-Related Leave Rights: The U.S.
Department of Labor recently issued final, revised regulations
regarding the Family and Medical Leave Act of 1993 (FMLA),
which applies to employers with 50 or more employees. The
new regulations take effect on January 16, 2009, which may just
give employers enough time to read them all (the new
regulations are hundreds of pages long). Here are a few
quick highlights:
Leave for “serious health conditions” gets more
serious: The new regulations offer clarification on
what constitutes a “serious health condition,”
including revised definitions of “incapacity” and
“continuing treatment.”
Clarification of “qualifying exigency” military
leave: The recent National Defense Authorization Act
(NDAA) created a FMLA-based entitlement to (1) military
caregiver leave, and (2) leave for “any qualifying
exigency… arising out of the fact that the spouse, or a
son, daughter, or parent of the employee is on active duty (or
has been notified of an impending call or order to active
duty)” in support of certain types of military
operations. But employers were left scratching their
heads about what constitutes a “qualifying
exigency.” Thanks to the new FMLA regulations, we
now know that this new military leave entitlement covers a
broad range of activity: short-notice deployment;
military events and related activities; childcare and school
activities; financial and legal arrangements; counseling; rest
and recuperation; post-deployment activities; and additional
activities agreed to by the employer and employee.
You can pay me while I’m out, thank you very
much: FMLA leave is unpaid, but employees may take,
or employers may require employees to take concurrently with
any FMLA leave, any accrued paid vacation, personal, family or
medical or sick leave, as offered by their employer.
Under the new rules, all forms of paid leave offered by an
employer will be treated the same, regardless of the type of
leave paid leave that is substituted (including generic
“paid time off”).
Other clarifications: The new regulations offer
clarification on administering intermittent leave, including an
explanation of when an employee may be transferred; guidelines
for administering pregnancy and childbirth leaves; consolidated
guidelines on adoption leave; and much more.
For more information about our upcoming employment seminars
(such as “Understanding the New Disability
Laws: Equal Access to the ADAAA,” ), click here.