New ADA Regulations on the Way, Paid Sick Leave Proposed,
and The Supreme Court Raises The Bar for Employees On Age Discrimination Cases, DC Recognizes Same-Sex Marriages From Other States
By: Lawrence P. Postol
Vice President of Legislative Affairs
The Equal Opportunity Commission (“EEOC”) on June 17, 2009 approved a Notice of Proposed Rulemaking for new Americans with Disabilities Act (“ADA”) regulations. The Notice must first be approved by the Office of Management and Budget, so the exact content of the proposed regulations has not been made public. However, the EEOC has highlighted what the Notice will address:
· “Revise that portion of its regulations defining the term “substantially limits”;
· Expands the definition of “Major life activities” by including two non-exhaustive lists:
¨ the first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating);
¨ the second list includes major bodily functions (e.g., “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions”);
· states that mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a disability;
· clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
· changes the definition of “regarded as” so that it no longer requires a showing that the employer perceived the individual to be substantially limited I a major life activity and instead says that an applicant or employee is “regarded as” disabled if he or she is subject to an action prohibited by the ADA (e.g., failure to hire or termination) based on an impairment that is not transitory and minor;
· provides that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation.”
Congress has also been busy, proposing the Healthy Families Act in both the House (H.R. 2460) and Senate (S. 1152). The Act would require employers to provide up to 56 hours of paid sick leave. For employers with 15 or ore employees, employees would accrue one hour of paid sick leave for every 30 hours the employee works. The paid sick leave could be used not only for the employee’s illness, but also an illness of a child, parent, spouse, other blood relative, or absence due to domestic violence, sexual assault or stalking.
The United States Supreme Court in a 5 to 4 decision issued an important and unexpected ruling in the employment law area. In Gross v. FBL Fm. Servs. Inc., _US_ No. 08_441 (June 18, 2009), the Court held that a plaintiff who is alleging age discrimination must prove the adverse action (using being fired) would not have happened if there was age discrimination. Thus, the employee must prove that “but for” the age discrimination, the employee would not have been fired. This “but for” standard is a harder standard than under Title VII (race, sex, national origin, etc. discrimination), where the worker need only show the adverse action was caused in part by a discriminatory motive. However, a word of caution – this decision will not be popular with the Democratically controlled Congress, so do not be surprised if Congress passes legislation to overdue this decision.
On July 7, 2009, the District of Columbia began recognizing same-sex marriages performed in other states. Employers should review their ERISA benefit plans, to see if their definition of spouse will now encompass same-sex marriage partners, and if that is the result the employer wants. While DC insurance regulators may eventually require coverage for insured ERISA plans, coverage can not be required for self-funded plans. However, the plan needs to be clear as to who is and is not, covered. There are also tricky tax issues. For example, health insurance provided to a same-sex partner would not be exempt from federal taxation, unless the partner is a dependent - receives at least half the partner's support form the other partner. Likewise, a same-sex partner can not participate in a flexible spending program on a tax free basis, unless the partner is a dependent.
If you have any questions about the information in this article, you may e-mail Mr. Postol at Lpostol@seyfarth.com or call him at 202-828-5385.
