The Year 2009 in Review – Employment

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.