Legal land mines: 2009 law changes could affect your business

Employee demands are distracting, costly, and for the most part avoidable. Verdict investigation jury The 2007 edition of “Labor Practice Responsibility, Jury Prize Trends, and Statistics” highlights some employment statistics and trends you should know:

Employee claims have increased 400% in the last 20 years to the current 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%); secondly, private companies with more than 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 that the award will exceed $ 1 million and a 67% chance that the award will exceed $ 100,000; attorney’s fees are not included
• The average compensatory award in all federal court employment cases was $ 493,534 and reflects a 45% increase since 2000; compensatory damages do not include punitive damages or attorneys’ fees
• In state courts, compensatory awards increased 39%, while wrongful termination claims increased 260%
• If a labor lawsuit goes to trial, plaintiffs are more likely to win 67% of cases in state court and 63% in federal court.
• The cost of resolving a labor lawsuit has increased significantly in the last 5 years, from an average of $ 130,476 in 2001 to $ 310,845 in 2006.

These general statistics are sobering and are of concern to ALL organizations. Added to this are recent changes in federal and state laws that affect nearly every organization. In a disputed work environment that appears to be increasingly employee-friendly, risk-minimizing organizations MUST understand recent changes to the Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA) regulations. ). Employers must take immediate steps to ensure they comply with the new laws to protect themselves from future liability.

What changes to the Americans with Disabilities Act (ADA) of 2009 should I 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. Prohibits discrimination in recruiting, hiring, promotions, training, pay, social activities, and other employment privileges. In addition, it requires employers to do reasonable accommodation to the known physical or mental limitations of people with disabilities who otherwise qualify, unless it results in undue hardship to the employer.

The ADA Amendments, effective January 1, 2009, nullify previous Supreme Court decisions and make clear that the ADA is intended to provide a broad scope of protection to employees. In general, expand existing definitions to more employees. For many employers, existing policies and procedures may no longer be valid or useful in determining human resource practices.

2009 ADA Specific Changes:

• Organizations cannot consider mitigation measures such as medications or other measures that treat a disease when determining whether a person has a disability.
• Expands the definition of disability by adding what may affect a main activity of life, and now includes main bodily functions, such as the functions of the immune system, normal cell growth, digestive, intestinal, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.
• Clarifies that an impediment that is episodic or in remission is a disability if it substantially limits a main activity of life when active.
• It clarifies that one of the definitions of disability, “to be considered as an impairment”, does not require that the impairment actually limit a main activity of life.

What 2009 Changes to the Family Medical Leave Act (FMLA) should I understand?

The FMLA grants eligible employees up to 12 weeks of unpaid and protected leave from work, per 12-month period for employers employing 50 or more employees. A birth or placement leave may be taken 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 renders the employee unable to perform the employee’s job functions.

The new regulations, effective as of January 16, 2009, have created new license categories.military caregiver license Y qualified exigency licenseand has reviewed and clarified existing regulations. Especially for organizations with active duty or reserve duty military personnel, or with active duty or reserve duty military families, these changes require modifications to licensing procedures / forms, training / communications and policies, current practices of human resources related to employee leave.

2009 FMLA Specific Changes:

• Provides military caregiver license, that allows an employee who is the 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 qualified exigency license, which allows an eligible employee to take protected leave without pay for a period of up to 12 work weeks for the employee’s spouse, child, or parent who is on active duty or is 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 unable to care for themselves, making or updating financial and legal arrangements, spending time with a covered military member on short-term leave , temporary rest and recovery during deployment, post-deployment activities, and other activities arising out of a covered military member’s active duty or call to active duty.
• Give employers 5 days to provide a Eligibility notice after the employee’s request for FMLA leave or knowledge that an employee’s leave may be eligible for FMLA.
• Changes the time requirements and procedures for medical certifications.
• Specifies that light duty does not count against the FMLA leave allowance.
• Clarifies that the employee is required to explain the reasons for requesting leave if the employee cannot give 30 days advance notice of the need for leave.
• Clarifies when an employer may require a fitness-for-work certification.
• Allows employers to delay or deny FMLA leave to an employee who does not unreasonably comply with the employer’s notice and procedural requirements for requesting leave.
• Requires the employee to notify the need for a qualified exigency leave as soon as possible, 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 human resource policies, procedures, and practices.
• Beginning January 1, 2009, to become an independent contractor, you 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 who does not have a Certificate.
• Beginning February 2, 2009, all employers will be required to use a new Form I-9;
• Beginning in 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 can affect their health.
• Effective January 1, 2008, employers are required to notify employees of their rights and remedies available under the Staff 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 increase vacation pay when employment ends.

Are your documented policies, procedures and practices aligned with all 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 are required to conduct a thorough review of the recruiting, selection, training, promotion, performance appraisal, and HRIS systems to ensure compliance. All manuals, forms, website information and more for employees and managers 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 procedure / form changes do we need to implement?

• Make sure your organization’s procedures and forms reflect recent changes.
• Establish procedures for responding to requests for accommodations under the ADA
• Review FMLA notification forms. Notification forms are available on the Department of Labor website: http://www.dol.gov/whd/index.htm
• Review the medical certification forms to remove the license type request and allow for the additional information needed.
• Review the employee handbook and policies regarding FMLA leave; establish specific procedures for employees to report leave

What practice changes should we implement?

• Train managers on how to determine when reasonable accommodations may be necessary
• Document all interactive discussions and decisions about ADA accommodations
• Train managers to handle situations that could be related to a disability, particularly when employees believe they are considered disabled.
• Prepare job descriptions for each position they provide essential job functions including minimum physical requirements to perform each EJF, including certifications of fitness for work
• Train managers on new military licenses and other changes in regulations.
• Keep track of notification dates and use of FMLA leave
• Make sure your managers have the proper training to recognize problem situations and follow existing procedures.
• Vigorously investigate all notices of concern
• Document every step of the FMLA process AND all employee interactions that may be under ADA or FMLA laws

What else can we do?

For many organizations, the next step is to seek professional assistance. A consulting firm with knowledge of employment law can help you identify how to reduce the overall costs of your program while dramatically improving results.