labor lawAdivision of labor law center

The federal EEOC just published new regulations that redefine disability under the Americans with Disabilities Act.

The new regulations specifically address the definition of disability within the ADAAA of 2008, which has been in effect since January 1, 2009.

Under the new rule, certain impairments will create a presumption of disability. These impairments include epilepsy, diabetes, multiple sclerosis, developmental disabilities, deafness, blindness, use of a wheelchair due to mobility problems, autism, cerebral palsy, HIV/AIDS, muscular dystrophy, major depression, bipolar disorder, partial or complete amputations, post-traumatic stress disorder, obsessive-compulsive disorder and schizophrenia.

The new ADA rules mean that an employee who has been diagnosed with any of those conditions is presumed to be disabled and entitled to reasonable accommodation.

This may seem to be a common-sense approach to disabilities, but it has not always been so.

Under the old rules, each employee claiming a disability had to individually demonstrate that the condition limited one or more major life activities. A very large company might have 10 blind employees. Each blind employee would have to individually prove that blindness impaired their performance at one or more major life activities like reading, walking, using a phone book, using public transportation, cooking, shopping, personal grooming, etc.

An individualized assessment of whether a substantial limitation exists should still be done, according to the EEOC. However, the federal agency claims this “can be done very quickly and easily with respect to these types of impairments, and will consistently result in a finding of disability.”

Employers should note that the list of impairments is not exhaustive. Other conditions (more…)

A recent 7^th Circuit Court of Appeals ruling limits USERRA scheduling provisions for National Guard Members nationwide.

Under the USERRA or Uniformed Services Employment and Reemployment Rights Act, employers must allow members of the military to take time off for National Guard duty and training. Other provisions of the USERRA apply to employees or former employees on active military duty.

The law also requires that employers prominently display a USERRA poster, even when they have no employees who are covered under the law.

The lawsuit involved the city of Mount Vernon, Illinois. Several city police officers were also National Guard members. In the past, the city allowed the officers to use their vacation, sick or personal leave for National Guard training. This allowed the police officers to collect their full city salary, plus military pay, for the days they were away with the National Guard.

In addition, in the past Mt. Vernon allowed National Guard members to rearrange their work schedules when they conflicted with military obligations. By “bumping” other employees, a National Guard member could arrange his or her days off so that on National Guard weekends, the employee received full pay from both the city and the military, (more…)

Every employer should have begun using the new, updated I-9 form no later than April 3, 2009.

The biggest difference in the new I-9 form and the previous version is that expired identity documents will no longer be accepted on the new form.

The USCIS or Citizenship and Immigration Services notes that the Department of Homeland Security wanted to ensure that “documents presented for use in the Form I-9 process must be valid and reliably establish both identity and employment authorization.” The DHS adds that expired documents may not contain the workers valid status. They are also more prone to tampering and fraudulent use, than unexpired documents.

The new I-9 form also eliminates several documents from List A, items that establish both identity and employment authorization. These include Forms I-688, I-688A and I-688B, temporary resident cards and outdated employment authorization cards.

The newest I-9 form also adds a number of documents to List A, including: (more…)

Many employers struggle to understand the new EEOC definition of disability under the ADA, the Americans with Disabilities Act.

The ADAAA or ADA Amendments Act of 2008, significantly increases the number of employees who are considered disabled under the ADA. In fact, some estimates are that the ADAAA has tripled the number of “disabled” employees, simply by changing the definition of disabled.

In fact, according to SHRM, the Society for Human Resource Management, the majority of employees over the age of 50 may now be covered under ADA. That is because all that is required under the new regulations is that the individual have some deterioration in their body, and most individuals over 50 have such deterioration.

The new definition of disabled includes individuals (more…)

Many employers have questions regarding the COBRA subsidy under ARRA, the American Recovery and Reinvestment Act of 2009.

One of the key features under the ARRA is a 65% subsidy to provide COBRA continued healthcare coverage to the unemployed.

Employers need to realize that regulations are still being written for this law that went into effect on February 17, 2009. We will continue to update employers as new regulations are published.

COBRA, of course, is the Consolidated Omnibus Budget Reconciliation Act, a law that permits employees who have lost their jobs to continue their group insurance coverage for up to 18 months. COBRA also applies to dependents of ensured employees, and to employees who lose coverage because their hours have been reduced.

Only employers with 20 or more (more…)