Recent Changes in HR Law

1. Recent Changes in HR Law Sharon Ellinger MRI Technologies

2. The ADAAA • In 1990, President Bush signed the original ADA. • Supreme court decisions were made that did not favor employees with disabilities. • Congress introduced this revision to the law and President Bush signed it in December. • The new regulations went into effect on January 1, 2009. • Companies are now required to engage in an interactive process with employees to assist them with any disability. The definition of which has been expanded.

3. Expanded Definition of ‘Disability’ • Under the ADA, a disability limits an employee to perform an essential job function with or without a reasonable accommodation. • A disability was defined as a physical or mental impairment that substantially limits a major life activity.

4. Expanded Definition of ‘Disability’ • An employee’s impairment must be considered without corrective measures except for ordinary eye glasses and contact lenses. • Conditions that are episodic or in remission are considered disabilities. • The definition of major life activities is greatly expanded.

5. Expanded Definition of ‘Disability’ • The ADAAA directs that a disability “significantly restricts” a major life activity which is expansive. • Employers cannot discriminate against someone that they regard as disabled even if they actually are not. www.ada.gov

6. Example A cleaning company rotates its staff to different floors on a monthly basis. One crew member has a psychiatric disability. While his mental illness does not affect his ability to perform the various cleaning functions, it does make it difficult to adjust to alterations in his daily routine. The employee has had significant difficulty adjusting to the monthly changes in floor assignments. He asks for a reasonable accommodation and proposes three options: staying on one floor permanently, staying on one floor for two months and then rotating, or allowing a transition period to adjust to a change in floor assignments. These accommodations are reasonable because they appear to be feasible solutions to this employee's problems dealing with changes to his routine. They also appear to be effective because they would enable him to perform his cleaning duties.

7. Example • A cashier easily becomes fatigued because of lupus and, as a result, has difficulty making it through her shift. The employee requests a stool because sitting greatly reduces the fatigue. This accommodation is reasonable because it is a common-sense solution to remove a workplace barrier being required to stand when the job can be effectively performed sitting down. This "reasonable" accommodation is effective because it addresses the employee's fatigue and enables her to perform her job.

8. Family Medical Leave Act Changes • Congress amended the FMLA guidelines to begin January 16, 2009. • The changes are outlined in a 200 page document available through the Department of Labor. • The changes expand coverage for our military and support the recent ADA changes. • Managers must be aware of and comply with this federal law.

9. FMLA Basics • Provides 12 weeks of time off for medical reasons where an employee’s job is protected. • FMLA is not paid and can coincide with vacation time, sick time, or other paid time off such as insurance coverage. • The law covers the employee, spouse, child, or parent’s illness. • FMLA covers employees who have been employed for 12 months. • Employees must have worked 1250 hours in the past 12 months.

10. http://www.youtube.com/watch?v=fpVKj0dxyr0

11. FMLA Basics • To qualify for the leave, the employee must be taking the leave for the following reasons: • Birth of a child and in order to care for that child. • Placement of a child for adoption or foster care and to care for the newly placed child. • Caring for a spouse, child, or parent with a serious health condition. • A serious health condition that makes the employee unable to perform the function of his/her job.

12. FMLA Basics • An employee can split their FMLA time up and use it as needed. • The employee and company management work together to coordinate the FMLA time. www.dol.gov

13. FMLA Changes Definition of a serious health condition (continuing treatment) whether such condition causes and “incapacity” for FMLA leave is: • Measured by the duration of the incapacity itself (four or more consecutive days) • Requires in-person treatment by a health care provider at least once within seven days of the first day of incapacity. • And requires either • A regimen of continuing treatment initiated by a health care provider during the first treatment or • A second in-person visit to the health care provider for treatment within thirty days of the first day of incapacity.

14. FMLA Changes • Definition of serious health condition (chronic conditions). A chronic condition is one that: • Requires visits for treatment by a health care provider at least twice a year. • Continues over an extended period of time (including recurring episodes of a condition; and • May cause episodic incapacity rather than a continuing period of incapacity

15. FMLA Changes • If a husband and wife both work for the Company and each wishes to take leave for the birth of a child, adoption, or placement of a child in foster care, or to care for a parent (but not parent-in-law) with a serious health condition, the husband and wife may only take a combined total of up to twelve weeks of leave.

16. FMLA Changes • A covered family member’s active duty of call to active duty (Qualifying Exigency) is now covered. • An employee whose spouse, son, daughter, or parent either has been notified of an impending call or order to active duty or who is already on active duty may take up to a total of twelve weeks of leave for reason related to or affected by the family member’s call-up or service. This type of leave would be counted toward the employee’s twelve week maximum of FMLA leave in a twelve month period.

17. FMLA Changes • An employee may take FMLA leave to care for an injured or ill military service member. • This leave may extend up to a total of twenty-six weeks in a twelve month period for an employee whose spouse, son, daughter, parent or next-of-kin is injured or recovering from an injury suffered while on active military duty and who is unable to perform the duties of the service member’s office, grade, or rating.

18. ARRA • American Recovery and Reinvestment Act • February 17, 2009 • COBRA changes • Pay 65% for 9 months and deduct cost from payroll taxes • Available to laid-off workers and those terminated for any reason except gross misconduct • Tax Table changes- inform employees that they could underpay • Visit Recovery.gov

19. HIPAA • The ARRA includes changes for HIPAA • Stricter regulations are coming for health care providers. • Small businesses should make sure that they are in compliance with PHI.

20. Ledbetter Fair Pay Act • This law allows charges of compensation discrimination to be filed within 180 days from each paycheck that is disparate. • The EEOC recommends that employers keep payroll records longer for “performance appraisals that affect pay and job classification decisions.” • Small business should review their pay grades and policies to make sure that they do not have pay disparities.

21. Genetic Information Nondiscrimination Act (GINA) • Effective May 21, 2009 • Imposes restrictions on genetic information for health insurance companies and medical providers. • Business owners simply need to be aware of this law.

22. Thank you Questions and Discussion