impact of the obama administration on employment law march 20, 2009 copyright 2009 - general...

Impact of the Obama Administration

on Employment Law

March 20, 2009

Copyright 2009 - General Counsel, P.C.

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Introduction and Roadmap1. Overview of recommendations for employers2. Discussion of specific employment laws, recent

changes and the resulting workplace implicationsA. Americans with Disabilities Act B. Family and Medical Leave ActC. Consolidated Omnibus Budget Reconciliation Act

3. Highlight 2 Supreme Court decisions and what these decisions mean for employers

4. Provide a preview of the soon-to-be-passed Employee Free Choice Act, and its expected impact

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Employment Law To-Do List - 2009

Step 1:

Take proactive steps to protect against increased exposure to disability discrimination claims under the new amendments to the Americans with Disabilities Act


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Step 2:

Revise FMLA policy and forms to comply with the new regulations


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Step 3:

Be aware of the changes in eligibility for COBRA continuation coverage.


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Step 4:

Ensure compliance with recent Supreme Court decisions and Ledbetter legislation


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Step 5:

For non-union employers, prepare the organization for the expected passage of EFCA


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Americans with Disabilities Act (ADA)

• ADA is a wide-ranging civil rights law that prohibits, discrimination based on disability, similar to what the Civil Rights Act of 1964 did for discrimination based on race, religion, sex, and national origin.

• Under the Act, disability is defined as "a physical or mental impairment that substantially limits a major life activity.”


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ADA Amendments of 2008On January 1, a series of amendments signed into law last year officially took effect, including the following:

• Overturned 2 Supreme Court decisions that had limited the protections for people with disabilities, including those with diabetes, heart disease and cancer▫ The Amendments now provide a more permissive

framework through which ADA protections must be viewed

• Rejected the strict interpretation of the definition of disability, and makes it clear that the ADA should be construed in favor of broad coverage


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ADA Amendments of 2008

• Prohibit the consideration of mitigating measures (e.g., medication, prosthetics, and assistive technology) in determining whether an individual has a disability

• Cover people who experience discrimination based on a perception of impairment regardless of whether the individual experiences disability


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ADA Amendments of 2008

• Allow individuals that are affected by impairments that are episodic or in remission to be covered by the Act, if the impairments would substantially limit a major life activity

• Providesthat reasonable accommodations are only required for individuals who can demonstrate they have an impairment that substantially limits a major life activity, or a record of such impairment, not for those individuals that are only “regarded as” having an impairment


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Recommendations for Employers Based on the ADA Amendments

Review and update company policies and practices regarding the ADA’s interactive dialogue process, and focus on reasonable accommodation procedures


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•The Amendments will increase litigation by providing a broader definition of “disability.”

•Therefore, it’s critical for employers to keep accurate records of when an employee requests an accommodation, and the accommodations denied and/or provided, along with written documentation supporting the decisions.


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•Make sure that job descriptions accurately spell out essential job functions to prevent future disputes regarding expectations and responsibilities

•Consider diversity training for all employees, including disability training


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Family and Medical Leave Act (FMLA)

A labor law allowing an employee to take unpaid leave due to a serious health condition that makes the employee unable to perform his job or to care for a sick family member or to care for a new child (including by birth, adoption or foster care).


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New FMLA Regulations

•Waiver of Rights: Employees are now allowed to settle and release past actual or potential FMLA claims without the approval of DOL or a court

•Eligible employees: Clarifies the effect that a break in service may have on the 12-month requirement. There is now a 7-year standard, meaning that an employee who has worked less than 12 months during a current term of employment may still be eligible if, during the prior 7 years, s/he worked a total of 12 months


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•Light Duty Work: Time spent performing light duty work does not count against an employee’s FMLA leave entitlement. Also, the employee’s right to job restoration is held open during this light duty period of time.

•Certification: In response to the advent of HIPAA, the regulations add a provision that limits those who may contact the health care provider in order to authenticate or obtain clarification of information


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•Employer Notice Obligations: The notice obligation is delineated into three categories: general notice, eligibility and rights/responsibilities notice, and designation notice. ▫ General: posted in every workplace and in handbooks

▫ Eligibility: inform employees of their FMLA rights, issued within 5 days of a leave request or upon learning that a leave may be FMLA-qualifying

▫ Designation: issued by employers within 5 days of receiving sufficient information to determine whether the need for leave is FMLA-qualifying


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Implications of FMLA Regulations

5 changes that MUST be made:1. Update notice forms (and decide whether to

use the new limited right to provide some notices electronically)

2. Update handbook and/or FMLA policy3. Add new military leave certification notice

forms4. Update standards for granting FMLA leave,

and the FMLA significance of light duty5. Update medical certification notice forms, and

modify certification / re-certification processesCopyright 2009 - General Counsel,

P.C.

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Implications of FMLA Regulations

Changes to consider:

1. Consider updating rules on return-to-work certification to take advantage of the new employer rights

2. Consider whether to begin tighter enforcement of abuse notification rules and procedures


Consolidated Omnibus Budget Reconciliation Act

•A law signed into effect in 1985 that provides for a temporary extension of employer-provided group health coverage, or continuation coverage

•The American Recovery and Reinvestment Act of 2009 (stimulus package) has expanded eligibility and provided a premium reduction for certain individuals


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COBRA: Changes from the Stimulus Package

•Individuals that are involuntarily terminated between Sept. 1, 2008 - Dec. 31, 2009, and who elect COBRA, may be able to pay a reduced premium for up to 9 months (35% of premium for COBRA coverage)

•Premium reductions apply only to those premiums paid on or after Feb. 17, 2009; no refunds for premiums paid before


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•Who qualifies?▫Must be eligible as a result of an involuntary

termination between Sept. 1, 2008 – Dec. 31, 2009

▫Must have income <$125k (or $250k for couples)

▫Must elect COBRA coverage•Not eligible if:

▫The employee is eligible for other group health coverage (spouse or new employer) or for Medicare


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•Additional election period▫If an employee qualifies for COBRA, but did

not elect coverage when offered or elected but later dropped the coverage, there is an additional period of time within which to elect

▫Employer plans are required to notify of this 2nd period by April 18, 2009, after which the employee has 60 days to enroll


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•Notice requirements:▫COBRA notices must include information

on availability of reduced premiums▫By the 18th of March the Dept. of Labor will

have posted model notices▫Employers are required to notify

participants by April 17th, 2009


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Employee Free Choice Act (EFCA)

• It would give workers the option of forming unions by getting a majority of workers to sign cards to join without having to hold a secret ballot election. (Current law leaves it up to employers to decide whether workers must hold an election or can organize via "card check.")

• Mandates that -- if employers and workers

cannot reach a contract within 120 days -- a government arbitrator intervene and set terms.


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Potential Implications of EFCA

Preparations in anticipation of EFCA’s passage (for non-union employers):1. Designate an EFCA Response Team to

monitor developments, understand how organizing may be directed at your employees, develop a written response plan, assess the risk of union organization and create an implementation action calendar


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Potential Implications of EFCAPreparations in anticipation of EFCA’s

passage (for non-union employers):2. Adopt and communicate a basic union-free

policy to your employees that emphasizes the importance of employees being able to deal directly with management

3. Assess, and regularly reassess, company’s vulnerability to a union organizing campaign and promptly address any identified weaknesses in the areas of wages, benefits, working conditions


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Potential Implications of EFCAPreparations in anticipation of EFCA’s

passage (for non-union employers):4. Train managers and supervisors to watch

for signs of unionization and educate them about the importance of the company’s union-free status to its continued success

5. Educate managers and supervisors about unions: what they can and cannot do for employees and the real costs of being a union member (fees, loss of freedom to union, potential job loss during strike)


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Lilly Ledbetter: Supreme Ct. Decision and Legislation

• In 2007, the Supreme Court ruled that employers are protected from lawsuits alleging race or gender pay discrimination, unless the claims are brought within 180 days of the when the employer makes the alleged discriminatory pay decision

• The Court held that the actual intentional discrimination must occur within the charging period


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Lilly Ledbetter: Supreme Ct. Decision and Legislation

• Congress stepped-in after the Ledbetter decision with new legislation that was signed by Pres. Obama in January. This bill counteracts the Court’s decision by dramatically expanding the time frame for employees to bring compensation-based discrimination claims

▫ The time limit for bringing a claim now begins to run each time that an employee “receives a paycheck that manifests discrimination”


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Crawford Decision: Effects on Employer Retaliation Cases

• In January, the Supreme Court ruled unanimously that employees who speak out about discrimination and harassment during employer-initiated internal investigations are protected under the anti-retaliation provision of Title VII

• Shows the judiciary’s willingness to continue to extend protection to employee’s from retaliation in, and related to, the workplace


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Crawford Implications

• Employers should properly document allegations of unlawful treatment raised by employees during internal investigations

• Any new claims of unlawful discrimination or harassment (i.e., “me too” harassment) should be treated as separate complaints subject to independent investigations and protections


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Important Take-Away Points

1. Ensure policies and procedures, including employee handbooks, are in full compliance with the current law

2. Revise forms, notices and certifications where needed

3. Encourage non-discrimination trainings sessions for employees and supervisors

4. Consult with a legal advisor regarding specific instances that arise in the workplace

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Questions?General Counsel, P.C.

6862 Elm Street Suite 800McLean, VA 22101

(703) 556-0411www.generalcounsellaw.com


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