The New Legal Landscape

In 2009 the Americans with Disabilities Act (ADA) was expanded in scope to cover an additional 12 to 36 American workers. Are your managers trained to know what is covered and to engage in the interactive process?

In 2008, Congress passed the ADA Amendments Act, broadening the definition of “disability” and requiring employers to largely bypass the question of whether employees are disabled and to focus instead on finding reasonable accommodations. The ADA now covers many temporary conditions and mental and physical impairments that were not previously covered. Frontline managers can create the greatest risk.

Are your drug and alcohol use policies and practices compliant with marijuana laws and the ADA?

Recent changes in state law and the ADA have complicated this legal picture significantly, and the law continues to evolve as courts issue interpretative decisions.

In recent years, Congress has expanded, and the EEOC has issued new regulations broadening, the scope of the Family and Medical Leave Act (FMLA). Are you current on these changes?

Adults acting in the role of parents, same sex spouses, military families, and others are affected. FMLA retaliation litigation is increasing and the jury verdicts are often enormous. In September 2014, a Wyoming jury awarded $1,481,000, plus attorney fees and interest, to a long-term mechanic who had taken intermittent FMLA leave for back and neck medical treatment, finding his termination retaliatory. A production supervisor in a factory was awarded $413,000 plus attorney fees, after she was terminated within two days of requesting FMLA leave to assist with her husband’s impending surgery. FMLA cases can be filed directly in court without an initial EEOC filing, and the damages awards are doubled by statute unless the employer can demonstrate good faith.

Flexible work arrangements are often mandated as reasonable accommodations under the ADA. Do you have a flexible work program in place that is strategic and compliant?

Has your leadership team decided on its strategic approach to workplace flexibility? Does it account for legal mandates? Are your managers using strong teams, cross-training, and contingent workers to handle strategic and legally mandated flexible work arrangements? Does your teleworking policy define eligible positions clearly? Do your managers need training in handling virtual workers on a part- or full-time basis?

Fathers are suing to enforce their FMLA rights with more frequency; the EEOC now requires parental leave parity. Are your work culture, policies, and practices up-to-date?

A jury recently awarded an adoptive father $666,610 in damages plus $375,000 in attorney fees for FMLA retaliation after he was fired for taking intermittent leave to visit Russia in the adoption process. A young associate in a law firm recently sued for FMLA retaliation after being fired for using four weeks of leave to care for his wife suffering from mental illness following the birth of their child; the case is going to trial. 2014 EEOC Guidance on FMLA requires the same parental leave for men and women after the initial period of recuperation from childbirth.

Pregnancy discrimination law is evolving and a top EEOC priority. Are your managers current?

The EEOC has prioritized pregnancy discrimination enforcement and issued new pregnancy discrimination regulations. The U.S. Supreme Court has announced a new standard for Pregnancy Discrimination Act claims. Gender stereotype claims are increasing.

Are your policies keeping up with technological advances in the workplace?

Are you protecting company data and property used by remote workers with the necessary written agreements and policies?
Are you at risk of violating employees’ right to privacy to their email accounts on home or personal devices used for work purposes?

 

For a free one-hour consultation with Mary, call (303) 229-3597 or email her at mary@worksmartpartners.com

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