Articles Tagged with #ADA

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The Workplace Policy Institute has a comprehensive analysis of possible legislative and regulatory changes to employment law in the coming year. While the full article is certainly worth a read, here is a short summary of some of the most important points.

  • Congress is unlikely to pass any major legislation ahead of the midterms (surprise), as laws such as the Employment Non-Discrimination Act continue to be stalled in the House. However, some small immigration reforms, such as new visa rules, could be among changes that could make it through Congress. Enhanced protection for whistleblowers may also be on the agenda.
  • Executive branch agencies will likely pursue an aggressive regulatory agenda, partly under the auspices of President Obama’s income inequality push.
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Published right before Thanksgiving, the 2013 fall federal agency regulatory plans help to illustrate what proposed and final rules are on the agenda for the coming months.  The regulatory plans and fall agendas highlight agency priorities and goals and give a preview of future developments in federal employment law.

At the Department of Labor, the agency in general is focused on its “Plan/Prevent/Protect” initiative, which is designed to lessen the agency’s enforcement and inspection burden by issuing rules designed to put the responsibility for ensuring workplace compliance on the employer or regulated entity (such as a union).  Among the DOL’s subsidiary agencies, OSHA is working on publishing final rules that will establish standardized procedures for filing whistleblower complaints under a number of federal statutes, as well as updating workplace infectious disease standards.  The Office of Labor Management Standards will probably publish some version of its controversial “persuader rule,” which would greatly expand the types of union-related activities that trigger employer reporting requirements.  The Office of Federal Contract Compliance programs will continue to update its revised affirmative action requirements, as we covered here earlier, and will likely provide updated sex discrimination guidelines.  Finally, the Wage and Hour Division will be updating its definition of “spouse” to conform to the Supreme Court’s decision in U.S. v. Windsor.

At the EEOC, the agency plans to issue an updated rule increasing the monetary penalty for violations of the agency’s notice posting requirements under Title VII and the ADA.  The NLRB may move forward with a rule that will significantly change pre and post-union election procedures.  An earlier version of the rule was stayed after litigation found it invalid.  Lastly, the Department of Health and Human Services is going to be publishing rules implementing the Affordable Care Act’s non-discrimination provisions, which provide protections against discrimination in health programs and by activities of covered entities.

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Sometimes, a situation arises where an employee cannot return to work after FMLA leave expires.  Although different lengths of leave have been considered appropriate under the ADA, usually indefinite leave has never been looked at as a reasonable accommodation.  Recently, however, the New York Court of Appeals issued a ruling that may call that assumption into question.

In the case, a bank executive took almost five months of leave for various medical issues, including major depression.  The bank contacted the employee, and asked whether he intended to return to work or whether he intended to give up his position.  The employee responded by stating that he had no intention of giving up his position, and that he had an “indeterminate” return-to-work date.  The bank responded by terminating him.  When the employee filed suit, the bank traditionally argued that his proposal of indefinite leave was not a reasonable accommodation.

Under New York City law, however, the court found that the bank had the burden of showing why indefinite leave would impose an undue hardship on the company.  Basically, the court noted that there is no accommodation that is per se unreasonable, and thus that the bank would have to show more before the court would dismiss the case.  Essentially, an employer faced with an indefinite leave request (in New York City) has to show either that 1) the employee could not perform the essential functions of the position with reasonable accommodation or 2) that the accommodation would result in an undue hardship.  The article notes, correctly, that the bank made a couple mistakes.  First, it ended the reasonable accommodation “interactive process” too early before finding out necessary information.  Second, it didn’t appropriately figure out how the employee’s indefinite leave was affecting its business.  By figuring out what hardships it was facing, the employer would have been in a better position to discuss the employee’s situation, and to engage with the employee about what kind of leave he was requesting.

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Particularly relevant for employers in this area, the Office of Federal Contract Compliance Programs (“OFCPP”) recently issued new rules that increase the affirmative action requirements of direct federal contractors and subcontractors.  The rules require that contractors take affirmative steps to hire individuals with disabilities, along with including more stringent reporting requirements and higher hiring targets for contractors.

The Department of Labor noted that the new rule was necessary because of the continuing high disparity in employment between individuals with disabilities and non-disabled individuals; although non-binding, the rule includes a seven percent utilization goal that encourages contractors to employ people with disabilities at all levels of their business structures.  The rule applies to contractors and subcontractors with a covered contract of $10,000 or more; contractors with 50 or more employees and a contract of $50,000 or more are also required to maintain written affirmative action policies.

The new rule overhauls Section 503 of the Rehabilitation Act of 1973, which prohibits discrimination and requires contractors to take affirmative action steps in personnel practices.  It also requires that employers use voluntary self-disclosure surveys for applicants and employees in order to determine whether they have disabilities (a reporting requirement).  Lastly, it orders that contractors develop more expansive affirmative action programs, and maintain up-to-date reasonable accommodation and harassment policies, along with promoting workplace training regarding discrimination.

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In one of last week’s biggest cases, the New York Court of

Appeals unanimously voted that under the NYC Human Rights Law indefinite leave

for a disabled employee is not a per se unreasonable accommodation and that the

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I hope everyone has had a safe and happy holiday season.

Here are two links to some interesting employment law developments from the

past couple of weeks, along with a little analysis. Check back for a year-in-review