Top Employment Law Topics for 2009

HR Advisor feature article | January 2009

People often start the New Year with new resolutions and plans. Based on new employment laws for 2009, however, employers also need to be up to speed with required changes in their policies and practices.

The following summarize three top areas of focus for the New Year.

Americans with Disabilities Act (ADA)

Effective January 1, 2009, The ADA Amendments Act of 2008 (ADAAA) redefines who is considered “disabled” under the ADA and thus leads to a potentially larger number of “disabled” employees seeking accommodations and of those who may claim they were “regarded as” disabled in unfair treatment claims.  (Note: The Americans with Disabilities Act (ADA) applies to businesses with 15 or more employees.)  Highlights include:

• Covered Individuals. The number of individuals covered by the ADA will increase including those with:
  • Conditions corrected by medication (i.e. diabetes, epilepsy),
  • Conditions currently in remission, and
  • Conditions that are episodic. 
• Reasonable Accommodation and the Interactive Process.
  • Make sure job descriptions are current and relevant,
  • Maintain an on-going dialogue with employees who may have a disability that needs to be accommodated, and
  • Document any evidence and / or discussion about potentially providing reasonable accommodation.

Family Medical Leave Act (FMLA)

Effective January 16, 2009, new federal Family Medical Leave Act (FMLA) regulations make some significant changes to the interpretation of the Act.  The new rules serve two main purposes: (1) to provide clarity on several long-standing, challenging regulations and (2) to implement new FMLA leave available to military family members.  (Note: FMLA applies to businesses with 50 or more employees.)  Highlights include:

• Release of FMLA Claims: Employers can safely include employee releases of past FMLA claims in severance and settlement agreements.
• Employer Notice Obligations: Employers are required to provide newly-hired employees with a general FMLA notice (which can be done through an Employee Handbook), an eligibility notice, a rights and responsibilities notice and a designation notice. The time period is also extended for employers to provide such notices from two business days to five business days.
• Employee Notice Requirements: An employee requesting FMLA leave must adhere to the employer's usual and customary call-in procedures for reporting an absence unless unusual circumstances exist.
• Medical Certification: There are new medical certification form requirements one for considering an employee's own serious health condition and one for when an employee’s request for leave to care for a family member with a serious health condition.
• Notification of Certification Deficiencies: If an employer determines that a medical certification is incomplete or insufficient, the employer must notify the employee in writing, state any need for additional information, and provide the employee seven days to remedy the situation.
• Clarification and Authentication of Medical Certification: In general, after giving an employee the opportunity to remedy any certification deficiencies, the employer may contact an employee's health care provider for purposes of clarification and / or authentication of the medical certification.
• Past Employment Eligibility: Employers must count an employee's non-consecutive prior service with the employer unless the break in service was generally seven years or more.
• Light Duty: Time spent performing light duty work does not count against an employee's FMLA leave entitlement. Also, if an employee is voluntarily working a light duty assignment, the employee is not considered on FMLA leave.

To prepare for the FMLA changes such as those noted able, an employer should at least:

• Update Employee Handbook policies to reflect the new requirements. Also, be sure to review your call-in procedures and any notice requirements.
• Update your employer response forms, medical certification forms, and new forms to be utilized under the new service member provisions (discussed further in the following section).
• Train all members of Management about their responsibilities to effectively address situations regarding any employee with a medical condition.

Military Leave

In line with the 2009 FMLA changes, keep in mind the National Defense Authorization Act for 2008 (NDAA), which was signed into law on January 28, 2008.  Highlights include:

• Leave Duration. An eligible employee may take up to 26 workweeks of leave during "a single 12-month period" to care for a seriously injured or ill service member. An employee may be eligible for Military Caregiver Leave if he or she is a spouse, child or parent of a service member or a service member's "next of kin."
• Multiple Leaves. An eligible employee may take more than one Military Caregiver Leave if the leave is to care for a different covered service member or to care for the same covered service member with a subsequent serious injury.
• Qualifying Exigency. Employers also must provide eligible family members 12 workweeks of leave for "any qualifying exigency" for events such as military events and related activities, childcare and school activities, and short-notice deployment.
• Qualified Employees. Qualified exigency leave is limited to family members of reservists and retired members of the regular armed services or reserves on active duty or called to active duty status to support a contingency operation. (Note: Qualifying exigency leave is not available to family members of active service members of the regular armed forces.)

Exceptions. An eligible employee is generally entitled to a maximum of 26 weeks of Military Caregiver Leave and traditional FMLA leave in a "single 12-month period." For example, an eligible employee may, during "a single 12-month period" take 16 weeks of military caregiver leave to care for a covered service member and 10 weeks of FMLA leave to care for a newborn. 

Subscribe to MyPayrollHR's free newsletter HR Advisor, and receive articles like this one — as well as HR alerts, advice, tips and tools — in your e-mail inbox once a month.

.:. Subscribe now >>