As you plan for 2009, every employer should take steps to address the amendments to the Americans with Disabilities Act (ADA), the new Family and Medical Leave Act (FMLA) regulations, and the anticipated passage of the Employee Free Choice Act (EFCA). The following is a suggested “to do” list.

Action Items
1. Take Proactive Steps to Protect Yourself Against Increased Exposure to Disability Discrimination Claims Under the New Amendments to the ADA.

On September 25, 2008, President George W. Bush signed into law the ADA Amendments Act of 2008. The ADA Amendments Act overturns two U.S. Supreme Court decisions that narrowed the definition of “disability.” It also expanded what conditions are considered disabilities under the ADA. These new amendments went into effect on January 1, 2009.

Because these amendments will make it easier to bring disability discrimination claims and harder for employers to defeat these claims, employers must take some proactive steps:

  • Review and update your policies and practices regarding the ADA’s interactive dialogue process, and focus on your reasonable accommodation procedures.
  • The ADA Amendments Act will increase litigation under the first two prongs of the “disability” definition. These two prongs protect any individual who: (1) has a physical or mental impairment that substantially limits one or more major life activities; or (2) has a record of such an impairment.

Consequently, keeping accurate records of when an employee requests an accommodation, and the accommodations denied and/or provided, along with written documentation for the decisions that are made, requires immediate attention.

  • Finally, refresher training of HR professionals and line management regarding the ADA’s requirements concerning the interactive dialogue with an employee who requests an accommodation and the employer’s obligation to reasonably accommodate an employee’s disability, must also be done.

2. Revise Your FMLA Policy and Forms to Comply with the New FMLA Regulations.

The new FMLA regulations took effect on January 16, 2009 – are you prepared?

These new regulations: (1) revise the existing regulations to improve employee-employer communications about the FMLA; and (2) implement the active duty and military caregiver leave requirements included in the National Defense Authorization Act. (For a summary of the new regulations, see page 1 of this issue.)

Here are five changes you MUST make and four you should consider:

  • Update your notice forms (and decide whether to use the new limited right to provide some notices electronically).
  • Update your handbook and/or FMLA policy.
  • Add new military leave certification notice forms.
  • Update your standards for granting FMLA medical leave, and the FMLA significance of light duty.
  • Update your medical certification notice forms, and modify both your certification and recertification procedures.
  • Consider updating your rules on return-to-work certification to take advantage of the new employer rights.
  • Consider whether to change your rules about the use of paid leave to take advantage of the new flexibility.
  • Consider whether to begin tighter enforcement of abuse notification rules and procedures.
  • Finally, consider whether to modify various bonus programs to take advantage of the new flexibility.

3. If You Are a Non-Union Employer, Prepare Your Organization for the Expected Passage of EFCA.

Passing EFCA in 2009 is organized labor’s number one priority, and unions have an ally in President Barack Obama (an original Senate sponsor of the Act).

EFCA will make revolutionary changes to national labor policy. Most disturbingly, it will replace secret ballot elections for determining whether employees in a bargaining unit want union representation with a card check procedure.

EFCA also will make three radical changes to the collective bargaining process: (1) it would require negotiations over an initial contract to begin within 10 days after the union makes a request for bargaining; (2) it would require mediation (by the Federal

Mediation and Conciliation Service (FMCS)) if after 90 days the employer and union are unable to reach an agreement; and (3) if after 30 days of mediation the parties remain unable to agree, the terms of the initial contract would be determined by an arbitration board established by the FMCS, not the parties.

In addition, EFCA would strengthen significantly the remedies for unfair labor practices imposed by the National Labor Relations Board (NLRB). Most importantly, in cases involving the discharge of employees for seeking union representation, the NLRB would have the authority to award the equivalent of treble damages.

Although no one can predict what version of EFCA will pass (or when), employers must put themselves in a position to launch their union-free campaigns before a union targets them for a card signing campaign.

Below are five steps every non-union employer should take now:

  • Designate an EFCA Response Team to monitor EFCA developments, to understand how organizing may be directed at your employees, to develop a written response plan, to assess the risk of union organization, and to create an implementation action calendar.
  • Adopt and communicate a basic union-free policy to your employees that emphasizes the importance of employees being able to deal directly with management.
  • Assess, and regularly reassess, your company’s vulnerability to a union organizing campaign and promptly address any identified weaknesses in the areas of wages, benefits, working conditions, bad supervisors, etc.
  • Train your managers and supervisors to watch for signs of unionization and educate them about the importance of your company’s union-free status to its continued success.
  • Educate your managers and supervisors about unions: what they can and cannot do for employees and the real costs of being a union member (initiation fees, dues, assessments, and fines; loss of freedom because employees will be bound by the union’s constitution and bylaws that the union will likely not show the employee before asking him/her to sign an authorization card; and the potential loss of their jobs if they are replaced during an economic strike).

Practical Advice

Although 2009 looks like it will be a hectic year, you can reduce the pressure on yourself and your organization by implementing the preventive measures under the To Do List discussed above. Remember, as Benjamin Franklin once said, “Never leave that till tomorrow which you can do today.”

Note: This article was published in the January/February 2009 issue of The Employment Law Authority.

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