Friday, December 19, 2008

Changes in Major Workplace Laws Affecting Sick Workers, Caretakers and People With Disabilities to Take Effect in January

/PRNewswire/ -- New rules affecting the ability of employees to take time off to care for sick relatives and the rights of workers with disabilities to obtain workplace accommodations will take effect in January, and employers need to make sure they're prepared for these changes in two landmark employment laws.

Chicago labor and employment law firm Franczek Radelet & Rose reminds business owners that changes to the Americans with Disabilities Act (ADA) take effect on January 1 and revisions to the Family Medical Leave Act (FMLA) become effective on January 16.

The ADA amendments enacted earlier this year by Congress are meant to restore rights granted in the original 1990 law that had eroded as a result of recent U.S. Supreme Court decisions and federal regulations.

"We anticipate that as of January 1, employers will start seeing more requests for workplace accommodations as a result of these changes, which broaden the scope of disabilities currently covered by federal law," says partner Sally J. Scott of Franczek Radelet & Rose (FRR). Scott says the changes to the 18-year-old ADA mean that many employees currently not covered by the law may now be considered to have a disability.

For example, the use of hearing aids, medication, prosthetics or other forms of treatment designed to mitigate the effects of disabilities may not be used to deny protection under the law - undoing a 1999 Supreme Court decision that restricted the number of individuals potentially protected by the law. Another change mandates that an impairment qualifies as a disability if - when active - it limits one major life activity, such as hearing, seeing, eating, walking or communicating.

"The changes to the ADA send a clear message from Congress that prior court decisions have been too restrictive in defining who is covered under the Act," said Scott.

"However, the amendments give very little guidance as to exactly what standards employers and courts should apply in the future when determining whether an employee has a 'disability' that entitles the employee to protection under the Act. This uncertainty is likely to result in increased litigation," said Scott.

The Family and Medical Leave Act of 1993 allows workers to take up to 12 weeks of unpaid leave to care for a newborn child or a family member with a serious illness or to recover from their own medical condition without losing their jobs.

"The revisions to the FMLA regulations, which are the first major changes since the statute was enacted, were designed primarily to clarify provisions of the law for employers and employees alike, and to implement new leave for members of military families," said FRR partner Michael A. Warner, Jr.

For example, under the new rules, workers with chronic conditions will have to certify for the first time that they visit a doctor at least twice a year for the condition. And workers will be required - "absent unusual circumstances" - to warn employers that they plan to miss work. Employers will also be allowed to require employees to submit a "fitness for duty certification" before returning to work from FMLA leave. To protect workers' privacy, the changes will prohibit an employee's direct supervisor from contacting a health care provider for medical certification.

Under new FMLA provisions affecting military families, workers will be allowed to take up to 26 weeks off each year to care for family members seriously injured in the military. Relatives of active-duty National Guard members and military reservists may take up to 12 weeks off to manage family affairs in certain cases, such as when a reservist is called up to active duty on short notice.

"Because these revised ADA and FMLA regulations will require significant management changes, we advise employers to make sure they are updating policies and procedures, revising appropriate forms and employee communications, and training supervisors at all levels about new responsibilities," Warner said.

"The difficulty and risk in implementing these changes is compounded by the current economic downturn, as employers are facing unprecedented economic pressure to 'do more with less.' The combination of large scale layoffs and significant changes in existing law create a volatile mix that increases the risk of legal liability for employers," Warner said.

Warner noted that these changes may soon be followed by even more sweeping revisions to employment law. For example, Democrats are expected to push for legislation requiring employers to provide paid sick leave. The FMLA requires medical leave, but not that it be paid.

"Whether the result of the current economic crisis or changes in political leadership, when it comes to labor and employment law, change is definitely in the air," Warner said, advising employers to "stay tuned" for expected efforts to expand the rights of workers in a variety of areas, whether mandatory paid medical leave or the ability to more easily unionize.

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