Employment Law Update

Michael Patrick O’Brien
January 22, 2009 | COMMENTS

The arrival of January marks the effective date of major changes to the Americans with Disability Act (ADA) and the Family and Medical Leave Act (FMLA). The ADA Amendments, effective January 1, 2009, make it easier for employees to show a disability. Before the amendments, many ADA claims were thrown out of court on this issue. From now on, the focus instead will be on how well the employer assisted the possibly disabled employee. HR persons now must "re-learn" parts of the ADA. You can read a summary of the ADA changes here.

Effective January 16, 2009, the FMLA also has been expanded. It now covers leave to care for family members injured in active military duty or to assist a family member preparing to go on active military duty. New FMLA regulations from the United States Department of Labor (DOL) expand employer notice obligations and otherwise significantly revise the details of FMLA compliance. It is time for your FMLA specialist to go back to FMLA school. You can read a summary of the FMLA changes here. Here is a summary from the DOL. New FMLA forms are available here. You can see the new, required FMLA poster here.

Intermittent FMLA Leave

The new FMLA regulations slightly change how employers can handle intermittent leave.  Intermittent leave is time off taken not in large blocks but rather in short intermittent time periods (e.g. a couple of hours at a time). An example is an employee taking a couple of hours off for physical therapy each week instead of taking larger blocks of time, such as 12 weeks off, to recover from major surgery.  The new DOL regulations allow an employer to allow intermittent leave in the shortest periods allowed for other leaves, provided it is not greater than one hour. Thus, if an employer only allows PTO in hour blocks, it can require an employee to take intermittent FMLA leave in hour blocks.  The old rule on FMLA intermittent leave required an employer to allow intermittent leave in the smallest blocks of time its timekeeping system could monitor, which for many employers was minutes, not hours. The new regulations also allow an employer to designate an entire shift as FMLA leave when it is physically impossible for an employee to start work midway through the shift (for example, airline flight attendants).

Health Worker Conscience Rule Challenged

In December of 2008, the Bush Administration's Department of Health and Human Services (HHS) issued a new regulation on the employee conscience issue. The new rule expands the protections from discrimination provided to employees, of federally-funded health-care entities, who refuse to provide abortion services, birth control services or other medical procedures because of religious or moral objections to the same. You can read a summary of the rule here.

In early 2009, several states and private organizations sued the federal government seeking to prevent the new rule from taking effect and claiming that it would interfere with women's health-care rights. President Obama is expected to try to rescind the new regulations.

House Passes Equal Pay Measures

In January of 2009, the new United States House of Representatives passed two measures said to expand protections against gender-based pay discrimination. The Paycheck Fairness Act (HR 12), which would require employers to provide a legitimate reason explaining payment of different salaries to men and women doing the same job, passed the House on a vote of 256-163. The Lilly Ledbetter Fair Pay Act (HR 11), which would expand the limitations period for bring equal pay claims, was approved on a 247-171 vote. Both measures are now before the Senate. National SHRM issued alerts opposing both bills.  President Obama has expressed support for both bills. You can read more about both bills here and here.

E-Verify Federal Contractor Rules Delayed

In the face of a lawsuit challenging their validity, the United States Department of Justice (DOJ) has delayed the effective date of new rules requiring procurement federal contractors to use the federal E-Verify verification system for employees. DOJ says the regulations will now take effect on February 20, 2009, rather than on January 15, 2009. National SHRM, the Chamber of Commerce and other business groups have filed a lawsuit seeking to rescind the rule.

The Employment Law Update is a legal and legislative update service sent out about twice a month to various members of the Utah League of Credit Unions HR Council. The author, Utah law attorney Michael Patrick O'Brien, is also the Legal and Legislative Director for Utah SHRM (Society for Human Resource Management). These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship. Contact O'Brien at 801-534-7315 or mobrien@joneswaldo.com or visit www.joneswaldo.com. Reprinted with permission.