"Significant amendments to federal law were enacted in 2008."
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2009
Federal
Labor & Employment Law
Legislative and RegulatoryUpdate
By Christopher W. Olmsted
Below is a summary of significant new 2009 federal laws and regulations relevant to labor and employment law issues.
ADA Amended
President Bush signed legislation on September 25th, significantly amending the federal Americans with Disabilities Act, effective January 1, 2009.
Expanded Definition of Disabilities.
A number of federal courts have adopted a narrow definition of disability. The amendment is a countermeasure. It incorporates major life activities already found in EEOC regulations (“caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”) Moreover, the amendment adds “major bodily functions” such as “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” This could lead to a substantial expansion of workers considered disabled under federal law, as it could potentially include conditions such as high blood pressure, asthma, and other conditions not traditionally viewed as disabilities.
Disregard of Mitigating Measures.
The amendment overrules U.S. Supreme Court decisions have held that mitigating measures, such as prosthetic devices, should be taken into account when determining whether the workers are disabled. Now, a worker may qualify as disabled under the ADA without regard to corrective measures such as medication, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; use of assistive technology; reasonable accommodations or auxiliary aids or services; or learned behavioral or adaptive neurological modifications.
Inclusion of Condition in Remission.
The amendment expands the definition of disability include a condition that is in remission or that is episodic, if it would substantially limit a major life activity when active.
“Substantially Limits” Liberalized.
A disability must “substantially limit” a major life activity. The ADA amendment rejects the strict standards set by the U.S. Supreme Court and by EEOC regulations. New regulations on this topic are expected; for now, all we know is that change is coming.
“Regarded As” Restricted.
The ADA protects workers who, while not actually disabled, are regarded as disabled by the employer. The amendment excludes from “regarded as” claims minor/transitory conditions lasting six months or less. This makes it less likely that temporary conditions will qualify as ADA disabilities—although the ADA (and courts) remain very unclear about when a temporary condition “counts” as a disability.
Click here for a more detailed report.
Discrimination Law: GINA
On May 21st, President Bush signed The Genetic Information Nondiscrimination Act of 2008 ("GINA") into law. According to the National Institutes of Health's National Human Genome Research Institute, "GINA protects Americans from being treated unfairly because of differences in their DNA that may affect their health. The new law prevents discrimination from health insurers and employers."
The new law, which becomes effective in November 2009, is the culmination of a decade-long debate and a series of legislative efforts to deal with the specter of genetic discrimination. Supporters of the law cited a few instances of genetic discrimination, but not widespread abuse.
Adding to the anti-discrimination provisions in Title VII of the Civil Rights Act of 1964, GINA prohibits employers from discriminating against employees on the basis of genetic information.
The term "genetic information" means information about (i) an employee's genetic tests, (ii) the genetic tests of family members of an employee, and (iii) the manifestation of a disease or disorder in family members of an employee. Under item (iii), knowledge that an employee or family member has an inherited (or inheritable) disease may trigger GINA.
Employers are prohibited from acquiring genetic information, with certain exceptions. Some exceptions include: (1) where an employer inadvertently requests or requires family medical history of the employee or family member of the employee; (2) indirectly, as part of a wellness program; (3) as part of an FMLA medical certification; (4) where the information involved is to be used for genetic monitoring of the biological effects of toxic substances in the workplace; and in a few limited other circumstances.
In the event that an employer does acquire genetic information, the new law requires strict confidentiality, in the manner dictated by the ADA.
Employees who violate GINA will be vulnerable to employee lawsuits and government agency enforcement actions.
Click here for a more detailed report.
FMLA Military Leave
The federal Family Medical Leave Act (FMLA) has been amended and expanded for the first time since the law was enacted in 1993. The amendment became effective January 28, 2008, when President Bush signed into law H.R. 4986, the National Defense Authorization Act of 2008. In addition to allocating more funds to the military, H.R. 4986 significantly amends the FMLA to extend coverage to employees to care for family members injured while on active military duty.
Generally, the amendment permits employees to take up to 26 weeks of unpaid leave to care for a family member who is a member of the military injured in the line of duty.
Although this law became effective in 2008, we report it here because the recent FMLA regulatory amendments add layers of detail to the new law, particularly with respect to qualified exigency leave. The Department of Labor's Wage and Hour Division has published its new regulations in the Final Rule under the Family and Medical Leave Act. The revised final rule becomes effective on January 16, 2009, and updates the regulations to implement the NDAA.
The statutory amendment permits employees to take up to 12 weeks of leave in the event of a “qualified exigency” (“QE”). In its new regulations, the Department of Labor has designated eight qualifying events that fall under this type of leave: (1) short-notice deployments (seven or fewer days notice); (2) military events (e.g. ceremonies, briefings); (3) childcare/school (e.g. time making arrangements on account of call to duty); (4) financial/legal arrangements related to the call to duty; (5) counseling related to the call to duty; (6) R & R leave (up to five days); (7) post-deployment activities (e.g. arrival ceremonies, briefings); (8) additional activities if permitted by the employer.
The QE leave must be taken for a spouse, son, daughter or parent on active duty with one of the armed forces reserves (not regular military.) QE leave is only available where the call to active duty is designated by the Secretary of Defense as a “contingency operation” in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force. The reservist’s military orders should specify whether it he or she is called for a contingency operation.
Covered employers ought to amend their personnel policies.
Click here for a more detailed report.
IRS Announces 2009 Standard Mileage Rates
The IRS has announced a new mileage rate effective January 1, 2009. The rate will decrease slightly, to 55 cents per mile.
“The mileage rates for 2009 reflect generally higher transportation costs compared to a year ago,” said the IRS in a press release, “but the rates also factor in the recent reversal of rising gasoline prices. While gasoline is a significant factor in the mileage rate, other fixed and variable costs, such as depreciation, enter the calculation.”
The IRS notes that the business mileage rate was 50.5 cents in the first half of 2008 and 58.5 cents in the second half.
Employers must generally reimburse employees for business-related travel expenses, including mileage. Often the IRS rate is adopted as the standard reimbursement rate, although this is by no means the exclusive method. Last year, for example, the California Supreme Court ruled that it is permissible in some circumstances to reimburse expenses by means of enhanced compensation. For details, follow this link: Gattuso v. Harte-Hanks Shopper, Inc.
New Form I-9
Effective February 2, 2009, all employers will be required to use a new I-9 form. The form is not yet available; USCIS will publish the new form on its website soon. Below is an excerpt from a USCIS FAQ:
Q: What is the difference between the revised Form I-9 and the old one?
A: The biggest difference in the revised Form I-9 is that all documents presented during the verification process must be unexpired. Other than several technical updates, the following documents have been added or removed:
Two documents have been added to List A (Documents that Establish Both Identity and Employment Authorization) on the List of Acceptable Documents:
A temporary I-551 printed notation on a machine-readable immigrant visa in addition to the foreign passport with a temporary I-551 stamp; and
A passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with a valid Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI.
Although prior regulations refer to temporary I-551 "stamps," the Department of State for several years has been affixing machine-readable immigrant visas (MRIVs) that contain a pre-printed temporary I-551 notation in the foreign passports of aliens immigrating to the United States. DHS therefore is updating the regulations to reflect this alternate temporary I-551 document with the pre-printed temporary I-551 notation on MRIVs.
Additionally, under both the preexisting Compacts with the FSM and the RMI, and the Compacts as amended, most citizens of the FSM and RMI are eligible for admission to the United States as nonimmigrants. Such citizens of the FSM and RMI have the privilege of residing and working in the United States. Amendments to the Compacts include provisions that eliminated the need for citizens of the FSM and RMI to obtain an Employment Authorization Document (Form I-766). By adding to List A the FSM and RMI passports, with a valid Form I-94 or I-94A, citizens of the FSM and RMI will be able to use their passports in the I-9 process without the need to obtain a separate Employment Authorization Document.
Three documents were removed from List A of the List of Acceptable Documents:
Form I-688, Temporary Resident Card;
Form I-688A, Employment Authorization Card; and
Form I-688B, Employment Authorization Card.
Follow this link for more information on the new I-9.
FMLA Regs
Department of Labor Updates FMLA Regulations
As reported in the December issue of Legal Upodate, the U.S. Department of Labor has published new regulations governing the Family Medical Leave Act (FMLA). The rules are effective on January 16, 2009. Please follow this link for the full article.
The new regulations cover the following topics:
FMLA Eligibility – counting months of service.
Employee Notice Obligations – clarifies employee and employer notice requirements.
Retroactive Designation – rules for designating leave after the fact.
Medical Certifications – clarifies employer procedure for clarifying certifications.
Medical Certification Process (Timing) – clarifies when employers may request a new medical certification.
Fitness For Duty – clarifies what an employer may require in a fitness-for-duty certification.
Light Duty Not FMLA Leave – specifies that light duty does not count against an employee’s FMLA leave entitlement.
Substitution of Paid Leave - all forms of paid leave offered by an employer will be treated the same; clarifies interaction with workers’ comp leaves.
Perfect Attendance Awards - allows employers to deny “perfect attendance” awards.
Waiver of Rights – FMLA rights may be waive retroactively (i.e., after the fact).
Details can be found in the article referenced above.
Request our complimentary FMLA/CFRA checklist. Email Chris Olmsted at cwo@barkerolmsted.com
More Legal Update articles.
Download entire January Legal Update in PDF format.
This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2009 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
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