Top 5 List of issues which kept workplaces abuzz in 2009.1. Swine Flu and the WorkplaceOn June 11, 2009, the World Health Organization declared the Swine Flu virus (H1N1) a pandemic. In doing so, employers across the U.S. scurried to take precautions for what to do when the virus struck their workplace. Fortunately, health commentators suggest that we’ve all seen the worst of this virus. However, no one can ever be certain. What is clear, however, is that labor and employment law specialists alike agreed that this highly contagious flu strain should not usher in disability and medical condition discrimination claims. This is, in part, because employers could encourage employees to be mindful of their coworkers and not risk losing their jobs if they contracted the illness. Relying on well-established, written Sick Leave, Paid Time Off, and Family Medical Leave policies ruled the day for how to handle a national pandemic in the workplace.2. Mandatory Sick LeaveAs “legal eagles” watch lobbyists around the country for setting the tone for workplace change, it has become more apparent that mandatory sick leave is an item on the agenda of many legislatures. The trend has been primarily motivated by San Francisco’s Paid Sick Leave Ordinance which was enacted in 2007. Generally, lawmakers are aiming to assure “mid-size” employers (of 15 or more employees) provide paid leave and ensure return to work rights for employees. While a proposed Healthy Families Act failed in June, 2009 before the U.S. Congress, the move to ensure employer-sponsored sick leave may reveal itself in Health Reform legislation. Stay tuned.3. Economic Stimulus Plans and Unemployment/COBRA BenefitsFor many Americans, losing a job in one of the most economically challenging times of our generation is the ultimate nightmare. However, a proverbial bright star of these times is Congress’s nod to extend unemployment benefits and to provide subsidies which assure displaced workers not only can afford to continue their medical benefits through COBRA but that employers can subsidize benefits through tax credits.4. The ADAAA and EE/ER Interactive ExchangesThe Americans with Disabilities Act as Amended and enacted in January 2009 directed the EEOC to make new, broader, and more inclusive regulations to the original act. Generally, the amendments assure that all perceived and actual medical conditions which disable employees from working are protected such that an employee’s disclosure of symptoms should not serve as a precursor to adverse employment actions. This means that an employee who is unable to work has the right to anticipate involvement in an interactive exchange that allows the employee to clarify his or her wish to return to work, arrive at a reasonable accommodation for returning to work, and be notified of his or her rights to return to work. However, legal commentators speculate that the impact of these amendments on modern workplaces remain to be seen and will not be fully known until more disability discrimination cases are litigated under the amendments. One thing that is clear is that the amendments have sparked more disability discrimination claims.5. Age Discrimination and ‘But For’ CausationIn June 2009, the U.S. Supreme Court, the highest court in [America] the land, decided that employees alleging they were subjected to adverse employment action on the basis of their age were required to prove their case based on a standard that is much different than other classes of protected discrimination. Specifically, employees who claim they were demoted or terminated due to race, sex, or national origin (for example) are required to show that traits they cannot change about their person were motivating factors for why their employers failed to extend equal employment opportunities. Whereas employees who are 40 years or older must show that ‘but for’ their age they would not have been subjected to workplace discrimination. There is much hope among legal practitioners that clarity with current law will come from amendments to the Age Discrimination in Employment Act. The Lilly Ledbetter Fair Pay Act of 2009 is a step towards the clarity sought. The latter has the effect of extending the time period in which claimants can bring suits challenging [unlawful] pay practices when employees, women in particular, discover late in their work careers that they’ve been subjected to questionable pay policies.
Employee lawsuits are distracting, expensive, and mostly avoidable. Jury Verdicts Research 2007 edition of “Employment Practices Liability, Jury Award Trends, and Statistics” highlights some employment statistics and trends that you should know:Employee lawsuits have risen 400% in the past 20 years to the currently level of 6.5 claims per 1,000 employees annually
The most common targets for Federal discrimination claims are private employers with between 15 and 100 employees (41.5%); second are private companies with an excess of 500 employees (23.9%); and third are private companies with between 100 and 500 employees (18%)
In any employment case filed in federal court, there is a 16% chance the award will exceed $1 million and a 67% chance that the award will exceed $100,000; attorney fees are not included
The average compensatory award in all federal court employment cases was $493,534 and reflects a 45% increase since 2000; a compensatory award does not include punitive damages or attorney fees
In State courts, compensatory awards are up 39% while wrongful termination claims are up 260%
If an employment lawsuit goes to trial, plaintiffs are more likely to win 67% of cases in State court and 63% in federal court
The cost to settle an employment lawsuit has grown significantly over the last 5 years, from an average of $130,476 in 2001 to $310,845 in 2006
These general statistics are sobering and are cause for concern to ALL organizations. Compounding these are recent changes in Federal and State laws that affect almost all organizations. In a litigious employment environment that seems to increasingly favor employees, risk-minimizing organizations MUST understand the recent changes to the Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA) regulations. Employers should take immediate steps to assure they are in compliance with new laws to protect themselves from future liability.What Americans with Disabilities Act (ADA) 2009 Changes do I Need to Understand?The ADA requires employers with 15 or more employees to provide qualified individuals with disabilities an equal opportunity to benefit from employment-related opportunities. It prohibits discrimination in recruitment, hiring, promotions, training, pay, social activities, and other privileges of employment. It further requires employers to make reasonable accommodation to the known physical or mental limitations of otherwise qualified individuals with disabilities, unless it results in undue hardship to the employer.The ADA Amendments, effective January 1, 2009, overturns prior Supreme Court decisions and makes clear that the ADA is intended to provide a broad scope of protection for employees. In general, it expands existing definitions to more employees. For many employers, existing policies and procedures may no longer be valid or useful in determining HR practices.Specific 2009 ADA changes:
Organizations cannot consider mitigating measures such as medications or other measures that treat a disease when determining if an individual has a disability.
Broadens the definition of disability by adding to what may affect a major life activity, and now includes major bodily functions, such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
Clarifies that an impairment that is episodic or in remission is a disability if it substantially limits a major life activity when active.
Clarifies that one of the definitions of disability – “being regarded as having impairment” – doesn’t require the impairment to actually limit a major life activity.
What Family Medical Leave Act (FMLA) 2009 Changes do I Need to Understand?The FMLA provides leave entitlement to eligible employees up to 12 weeks of unpaid, job protected leave, per 12-month period for employers who employ 50 or more employees. Leave may be taken for birth or placement for adoption or foster care of a child; the serious health condition of the employee’s spouse, son, daughter, or parent; or the serious health condition of the employee that makes the employee unable to perform the functions of the employee’s job.The new regulations, effective January 16, 2009, have created new categories of leave-military caregiver leave and qualifying exigency leave, and has revised and clarified existing regulations. Especially for organizations with active duty or reserve duty military personnel, or with families of active duty or reserve duty military, these changes require modifications to leave procedures/forms, training/communications, and policies, current HR practices related to employee leave.Specific 2009 FMLA changes:
Provides military caregiver leave, which permits an employee who is a spouse, son, daughter, parent, or next of kin of a service member with a serious injury or illness to take a combined total of 26 workweeks of unpaid leave during a single 12-month period.
Provides qualifying exigency leave, which permits an eligible employee to take protected, unpaid leave for a period up to 12 workweeks for the employee’s spouse, child, or parent who is on active duty or called to active duty in support of a contingency operation. This leave includes short notice deployment, military events and related activities, childcare and school activities for those incapable of self-care, making or updating financial and legal arrangements, spending time with covered military member of short-term, temporary rest and recuperation leave during deployment, post-deployment activities and other activities that arise out of a covered military member’s active duty or call to active duty.
Gives employers 5 days to provide an Eligibility Notice following employee’s request for FMLA leave or knowledge that an employee’s leave may be FMLA qualifying.
Changes time requirements and procedures for medical certifications.
Specifies that light duty work does not count against FMLA leave allotment.
Clarifies that the employee is required to explain the reasons for requesting leave if the employee cannot give 30-day advance notice of need for leave.
Clarifies when an employer may require a fitness-for-duty certification.
Allows employers to delay or deny FMLA leave to an employee who unjustifiably fails to comply with employer’s notice and procedural requirements for requesting leave.
Requires the employee to provide notice of need for qualifying exigency leave as soon as practicable, regardless of how far in advance such leave is foreseeable.
What Other Changes do I Need to Understand?
In addition to the ADA and FMLA changes, other laws and changes may require modifications to existing policies, procedures, and HR practices.
Effective January 1, 2009, in order to have independent contractor status, one must obtain an Independent Contractor Exemption Certificate from the Minnesota Department of Labor and Industry. Employers in some industries will be required to pay workers’ compensation, unemployment insurance and other benefits to anyone without a Certificate.
Effective February 2, 2009, all employers will be required to use a new I-9 form;
Effective November 2009, the Genetic Information Nondiscrimination Act of 2008 will protect Americans from being treated unfairly by employers and health insurers because of differences in their DNA that may affect their heath.
Effective January 1, 2008 employers are required to give employees notice of their rights and remedies available under the Personnel Records Statute.
The Minnesota Supreme Court in 2008 clarified that Minnesota’s wage statute requires employers to pay vacation pay to departing employees only if there is a promise to pay. There is no longer an automatic right to accrued vacation pay when employment terminates.
Are your documented policies, procedures, and practices aligned with all of the 2009 changes?What Should Employers Do?Given the many changes, employers must act quickly to align policies, procedures, and practices with these changes. At a minimum, all Minnesota employers should conduct a thorough review of recruitment, selection, training, promotion, performance evaluation, and HRIS systems to ensure compliance. All employee and managers handbooks, forms, website information and more must be aligned with these changes. What Policy Changes Should We Implement? Review and revise all policies to reflect changes in the ADA, FMLA, and other laws. What Procedures/Forms Changes Should We implement?
Ensure your organization’s procedures and forms reflect the recent changes
Establish procedures for responding to requests for ADA accommodations
Revise FMLA Notice forms. Notice forms are available on Department of Labor’s website: http://www.dol.gov/whd/index.htm
Revise medical certification forms to remove the request for type of leave and to allow for additional information needed
Revise employee handbook and policies regarding FMLA leave; set forth specific procedures for employees to report leave
What Practice Changes Should We Implement?
Train managers how to determine when reasonable accommodations may be necessary
Document all interactive discussions and decisions on ADA accommodations
Train managers to handle situations that might be related to a disability, in particular, where employees believe they are regarded as disabled
Prepare job descriptions for each position which provide essential job functions including the minimum physical requirements to perform each EJF including fitness-for-duty certifications
Train managers on new military leaves and other changes to regulations
Keep track of the dates of notice and FMLA leave use
Ensure your managers have the right training to recognize problem situations and follow existing procedures
Vigorously investigate all notices of concern
Document each step of the FMLA process AND all employee interactions that may fall under ADA or FMLA laws
What Else Can We Do? For many organizations, the next step is to seek professional assistance. A consulting firm that is knowledgeable in employment law can help identify how to cut your overall program costs while dramatically improving outcomes.