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.
For further information, please visit franczek.com. The firm's Web site provides regular updates on legal and policy developments in its "Front & Center" feature, which is updated weekly or as warranted.
About Franczek Radelet & Rose
Franczek Radelet & Rose is among the premier labor and employment law, employee benefits and education law firms in the country. Its practice is focused and clearly defined: its more than 50 attorneys focus exclusively on these practice areas from its Chicago office, from which it serves clients across the country. Its clients include Fortune 100 companies and some of the largest public sector entities in the United States, including the City of Chicago and the Chicago Public Schools, as well as many small-to-medium size businesses and educational institutions. The firm manages the largest and most complex cases for clients of all sizes while also maintaining day-to-day consultation on more routine matters. The firm believes that by maintaining its focus on these select, vital areas of law, it is best able to deliver a distinctive blend of extraordinary client service and value.
About Michael A. Warner, Jr.
Michael A. Warner, Jr. represents both private and public sector clients in all aspects of labor and employment law, with a particular emphasis on litigation, arbitration, and other forms of dispute resolution. Warner has wide-ranging experience representing employers before state and federal courts in multiple jurisdictions, the EEOC, and numerous state agencies in single and multi-plaintiff employment discrimination, sexual harassment, wrongful discharge, defamation and breach of contract cases. He represents private companies in the telecommunications, technology, retail, manufacturing, financial services, and transportation industries, and also represents municipalities in employment litigation and labor matters. In 2007 and 2008, Warner was recognized as an Illinois Super Lawyer in the area of employment litigation defense by Law & Politics. He joined the firm in 1995.
About Sally J. Scott
Throughout her legal career, Sally J. Scott has concentrated exclusively on representing management in both the private and public sectors in all aspects of labor and employment law. She has counseled clients and litigated matters relating to discrimination and civil rights claims, sexual harassment, wrongful discharge, breach of contract and the enforcement of non-compete agreements. Her labor experience includes collective bargaining, arbitrations, union organizing campaigns and defending unfair labor practice claims. She also has extensive experience with the Occupational Safety & Health Act (OSHA), counseling clients on compliance with OSHA regulations, guiding employers through OSHA inspections and contesting and successfully litigating OSHA citations. Scott is a member of the Board of Directors of the Illinois Safety Council and has been identified by the American Council of Engineering Companies as a "national education resource" on union-related issues. She is also a frequent speaker on labor and employment law topics. She joined the firm in 1994.
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