i2009 brings new and significant legislation that will require employers to update handbooks, revamp training protocols, and review procedures for responding to requests for accommodations. In addition, in 2009, employers should monitor pending legislation that could have a significant impact on their employment practices.
Genetic Information Nondiscrimination Act (GINA)
This law was designed to help ease concerns that discrimination at the workplace, or when obtaining health insurance, would deter individuals from getting genetic tests or participating in scientific studies. As of October 2009, employers are prohibited from discriminating on the basis of genetic information – information about an individual’s genetic tests or the genetic tests of the individual’s family members, and the manifestation of a disease or disorder in the individual’s family members. GINA also adds “genetic information” as a protected characteristic under Title VII of the 1964 Civil Rights Act. Therefore, handbooks need to be updated to include genetic information if the states in which your company has employees do not currently include genetic information as a protected class.
With regards to further compliance, employers should determine (1) whether and why they collect genetic information; (2) if steps should be taken to discontinue that practice and purge files of any existing genetic information; (3) whether any of the statutory exemptions apply to their collection practices; and (4) whether their current practices comply with GINA’s confidentiality provisions. Additionally, as always, employers should maintain careful documentation of their legitimate, nondiscriminatory reasons for taking adverse actions to defend against potential lawsuits.
The Americans With Disabilities Act Amendments Act
These amendments significantly expand protections afforded to disabled individuals.1 The amendments take effect January 1, 2009, and apply to businesses with 20 or more employees. The new law expressly overturns Supreme Court decisions narrowly interpreting the definition of “disability” and provides that “disability” must be “construed in favor of broad coverage of individuals.” For example, an individual must show that he has a physical or mental impairment that “substantially limits” a major life activity. Previously, employers could consider “mitigation measures” (i.e., medication, prosthetics, corrective eyewear) when evaluating whether an impairment is “substantially limiting.” If the employee was no longer impaired as a result of use of these measures, then the employee would not be considered as “disabled.” However, the amendments require employers to evaluate employees’ impairments in their unmitigated state. The amendments also add several new activities to the list of major life activities covered by the statute, such as “sleeping,” “concentrating,” “thinking,” “communicating,” and “the operation of major bodily functions” (e.g. the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions).
Employers have traditionally prevailed in the majority of ADA lawsuits, largely due to the difficulty plaintiffs have had in proving they were “disabled” under the statute. Now, with a broader interpretation of the term “disability,” the likely result is that millions of individuals not previously covered will have protection as individuals with disabilities. Employers must therefore review and update their job descriptions, as well as their procedures for responding to requests for reasonable accommodations, to be prepared to effectively respond to requests for accommodation.
The Consumer Product Safety Improvement Act Adds Whistleblower Protections
This law is Congress’ response to last year’s record 448 product recalls and represents the most comprehensive overhaul of consumer product safety laws since the Consumer Product Safety Act of 1972.2 The CPSIA provides new definitions for toys and children’s products; bans lead and other toxic chemicals in toys and children’s products; requires third-party testing for certain products prior to sale; establishes a public consumer product safety database; and bans the sale of recalled products. Significant to employers, the legislation includes a whistleblower provision prohibiting manufacturers, private labelers, distributors, or retailers from discharging or otherwise discriminating against employees because the employees provide information relating to CPSIA violations to the federal government or a state attorney general, testify regarding such violations, or object to participating in any activities believed to be tantamount to such violations.
New Jersey Paid Family Leave Law
There has been significant discussion regarding this new law. The employee payroll tax to fund the program will take effect on January 1, 2009. As of July 1, 2009, employees who are eligible for coverage under NJ’s Temporary Disability Benefits law will receive up to six weeks pay to care for a newborn, adopted, or seriously ill family member in the same manner they receive disability pay for their own medical condition. The employee must make a reasonable effort to schedule the leave so as not to unduly disrupt the operations of the employer, and the employee must also provide a supporting medical certification from the health care provider. The law does not require employers to hold the employee’s position open, but employers should be mindful of other state and federal laws that may provide employees with rights to reinstatement. Although employees are not eligible for these benefits until July 1, 2009, New Jersey employers are required to do the following by December 15, 2008:
• post the statutory required statement of benefits in a conspicuous place accessible to all employees and provide the posting to employees upon request,
• provide a written copy of this posting to each employee by hand, via mail or email, and
• on a go-forward basis, provide the posting to all new hires and employees who request leave to bond with a newborn or newly adopted child or to care for a seriously ill family member.
Employers should also update handbooks to include reference to employee rights and responsibilities under the Paid Family Leave Law. Given the current state of the economy, on November 13 and 17, 2008, two bills were introduced (A3421 and A3466) seeking to delay implementation of the new law such that payment of benefits would commence on July 1, 2010 or 2011, instead of July 1, 2009 as currently scheduled, and the collection of taxes to fund those benefits would commence on January 1, 2010 or 2011, instead of January 1, 2009.
New York WARN Act
New York now joins a growing number of states that have adopted their own WARN legislation. Effective February 1, 2009, the NY WARN Act applies to private sector employers who employ 50 or more full-time employees, whereas the federal WARN Act applies to companies that employ 100 or more full-time employees. NY WARN requires at least 90 days’ (compared to 60) advance written notice to affected employees and others in the event of a defined “plant closing,” “mass layoff,” or “relocation.” Employers may be exempt if they were actively seeking capital or business when the notice was required and such capital or business, if obtained, would have enabled the employer to avoid or postpone the relocation or layoff.
Pending Legislation To Watch
Federal: Employee Free Choice Act
This legislation could dramatically increase union activity in private workplaces. 3 Unions typically gain recognition by winning a secret-ballot election conducted by the NLRB. This proposal would eliminate secret ballot elections in favor of authorization cards signed by a majority of employees. As soon as a majority of workers in a unit have signed union cards, the NLRB will investigate, and if verified, the employer will be obligated to recognize and bargain with the union, possibly as early as ten days after a majority of the workers sign the cards. Although no action has been taken on the EFCA since its passage by the House in March of 2007, President-elect Obama has announced his support for the EFCA.
Amendments to New Jersey Law Against Discrimination
On November 13, 2008, the Assembly Judiciary Committee reported favorably on an Assembly Bill (A2292) which would amend the LAD, including:
1. prohibiting waiver of right to jury trial or modified statute of limitations as a condition of employment;
2. prohibiting “English-only” rules in the workplace, unless: (a) the language restriction is justified by a business necessity; and (b) the employer has notified its employees of the circumstances and the time when the language restriction is required to be observed and of the consequences for violating the language restriction;
3. making it unlawful to discriminate on the basis of that person’s “familial status”;
4. extending protection to “independent contractors”; and
5. requiring employers to provide reasonable accommodations for pregnancy or pregnancy- related conditions absent undue hardship on the employer.
New Jersey Healthy Workplace Act
The purpose of this proposal is to combat workplace bullying, abuse and harassment unrelated to any category protected by law.4 against employees because the employees provide information relating to CPSIA violations to the federal government or a state attorney general, testify regarding such violations, or object to participating in any activities believed to be tantamount to such violations. For example, current law prohibits harassment based on specific characteristics such as race, sex, national origin, age, etc. This law has no such limitation and makes actionable conduct such as derogatory remarks, insults, and verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating; or the gratuitous sabotage or undermining of a person’s work performance. In short, passage of this legislation could escalate petty personality clashes in the workplace into legal battles.
Federal Legislation Addressing Pay Disparity On The Basis Of Sex
The Federal Paycheck Fairness Act was proposed in response to calls for more robust efforts to remedy pay inequality between men and women in the workplace.5 The legislation makes it more difficult for employers to prevail and provides for recovery of punitive damages. The proposal also directs the EEOC to increase enforcement activity. The proposed amendments may also lead to larger class actions based on alleged wage disparities given that the proposed legislation allows for “opt-out” class actions, whereas the current law requires plaintiffs to “opt-in” to a class action by giving consent in writing. President-elect Obama co-sponsored the Paycheck Fairness Act. Another proposal, the Lilly Ledbetter Fair Pay Act, was drafted in reaction to the U.S. Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Co. The proposed legislation would permit plaintiffs like Ms. Ledbetter to sue for wages dating back to the alleged first time she received unequal pay, possibly years earlier, as long as she sued within 180 days of receipt of her last paycheck. Opponents to the proposed legislation have voiced concerns that, if enacted, the new law could impose “potentially staggering costs” on employers.6
Conclusion
It is likely that legislators will draft additional legislation directed to the workplace in reaction to the challenging economic times facing employers, workers and their families. Employers are well served to keep abreast of all legislative initiatives to plan for compliance upon enactment, but also to provide legislators with guidance on the practical impact of their proposals.
1 H.R. 3195, 110th Cong. (2008) (enacted).
2 H.R. 4040, 110th Cong. (2008) (enacted).
3 H.R. 80, 110th Cong. (2007).
4 A.3590, 212th Leg., S. and Gen. Assem. (N.J. 2006).
5 H.R. 1338, 110th Cong. (2007).
6 H.R. 2831, S. 1843, 110th Cong. (2007).
