Legal Briefs for HR #9 - 2009

-October 5, 2009-

Welcome to Legal Briefs for HR, an update on employment issues sent to over 4000 HR professionals, in-house counsel and business owners to help them stay in the know about employment issues. Anyone is welcome to join the email group . . . just let me know you?d like to be added to the list and you?re in! Back issues are posted on my firm?s website at www.munckcarter.com under E-Newsletter. A big welcome to new subscribers who attended my speech during the PIAA Technology, Human Resources and Finance Workshop in Charleston, SC!

Here?s what?s up:
# ABCs of ADA ? In restoring the Americans With Disabilities Act (ADA) to its original intent, Congress? first step was to amend the statute via the ADAAA, effective 1-1-09. The second step is for the EEOC to amend the implementing regulations, starting with the issue of a Notice of Proposed Rulemaking (NPRM). This was done on 9-23-09 with a 60-day comment period which will end on 11-23-09. You?ll find a complete copy of the NPRM and some FAQs on the EEOC website at www.eeoc.gov/policy/regs/index.html . The changes in the ADA included [1] no more use of mitigating measures when considering whether an individual has an impairment that substantially limits a major life activity; [2] expansion of the list of major life activities; and [3] broadening of the ?regarded as? prong of the definition of qualified individual with a disability. The regs provide additional direction including a non-exhaustive list of impairments that will consistently meet the definition of disability. This is a big departure from the prior approach, of evaluating each situation independently since there were no ?per se? disabilities. These changes will mean many more applicants and employees will have the protection of the law and employers? focus will shift from fighting ?disabled? status to determining the existence and scope of a reasonable accommodation, as well as the undue hardship and direct threat defenses, which remain.
# Floored by the ADA? ? If a disabled employee?s service dog is slippin? and slidin? on the employer?s slick tile floors, is installation of a nonskid surface a form of reasonable accommodation for the employee? Maybe, says the MT Supreme Court in reversing the trial court?s ?no duty? finding for the employer and remanding the case for further inquiry into the ?reasonable accommodation? analysis. McDonald v. Dep?t of Environmental Quality (Mont. 7-0-9). Don?t let your managers make these calls solo, as they are likely to bark up the wrong tree. Educate them on the fundamentals of employment law, designate a point person to receive and consider accommodation requests and involve legal counsel where needed, to avoid being bitten.
# The Eyes of Feds Are Upon You, Texas ? It?s not your imagination. Federal agencies, across the board, are increasing enforcement activity in the Lone Star State. As one example, shortly after questioning the state?s safety record during a June speech in San Antonio, Secretary of Labor Hilda Solis sent extra inspectors from other states into Texas. Upshot? A 60% increase in construction site inspections and 85% increase in citations issued.
# At A Minimum ? We all know that the federal minimum wage ratcheted up to $7.25/hour on 7-24-09, but don?t forget that you might be subject to a more generous state minimum wage rate. Further, ten states? rates are adjusted annually for inflation, including AZ, CO, FL, MO, MT, NV, OH, OR, WA and VT, so you may need to stay on top of those changes. CO is currently considering dropping its rate, since it experienced negative inflation. You can check out rates on your states? government website and/or check out a nationwide compilation at www.dol.gov/esa/minwage/america.htm .
# Are You Secure, Part 2 ? As mentioned in last month?s LB4HR, the failure to protect individuals? personal information from disclosure to unauthorized individuals is resulting in significant penalties to the organizations whose systems allowed the breach. Add to the mix the implementing provisions of the Health Information Technology for Economic and Clinical Health (HITECH) Act, which will affect health care providers, health plans and other entities covered by HIPAA beginning on 9-23-09. Entities subject to the rule must have procedures to deal with a breach, train its workforce in handling breaches, sanction those who don?t comply with the procedures and have a complaint procedure to report noncompliance. With certain exceptions, HITECH requires that breaches be reported You can find a copy of the Interim Final Rule and more info at www.hhs.gov/ocr/privacy/hipaa/understanding/coveredentities/breachnotificationifr.html .
# Smoke Signals - The line is still being drawn, to determine how far employers can go in conditioning employment on applicants? and employees? healthy habits. One employer had a wellness plan which prohibited employees from using tobacco both on and off the job, as a means to control medical expenses. A recent hire sued, when he was fired for testing positive for nicotine. In 2-08, the court dismissed two of plaintiff?s four claims, but held he had viable claims invasion of privacy and unlawful interference with the right to health insurance benefits, in violation of ERISA section 510. Fast forward to 7-09 where the employees remaining claims are given the boot because [1] his smoking was public, not private; and [2] he was not yet a health plan participant because the employment offer was conditioned upon a clean drug test. The plaintiff has appealed and employers are left to wonder if there would be a different outcome, had the termination of employment applied to a current, rather than a conditional, employee and/or if the smoking habit was unknown to the employer. Rodrigues v. EG Systems dba Scotts Lawnservice (D. Mass. 7-09).
# To Form a More Perfect Union? - A possible compromise version of the Employee Free Choice Act (EFCA), as extolled to the AFL-CIO by Sen. Arlen Specter (D.-Penn.), would include [1] accelerating the timeframe for holding an election to within 5 to 21 days after a union showing of 30% interest via signed authorization cards; [2] access to employees for union organizers during work time; [3] triple penalties for employer unfair labor practices; and [4] a ?last best offer? approach to imposing a collective bargaining agreement if negotiations fail, where the arbitrator chooses between the last/best offer from management and from the union. Lacking the 60 votes needed to move EFCA along, Senate Democrats were waiting to see if the Mass. legislature would change the current law, to allow their Governor to elect an interim replacement for recently deceased Sen. Ted Kennedy, or if they will have to wait until a special election scheduled for 1-19-10. The law was changed on 9-23-09 and an interim replacement, Paul G. Kirk, Jr., was named by Mass. Gov. Deval Patrick on 9-24-09.