SIGNIFICANT CHANGES IN THE LAW
We wish our clients and friends continued health, happiness, and prosperity in the New Year.
Before we get to the topic at hand, we want to congratulate founding FVLD member, Jon Vegosen, on his re-election to the Board of Directors of the United States Tennis Association (the "USTA") and his election as First Vice President of the USTA for the 2009-2010 Term. Jon will continue to practice law full time while serving in these prestigious volunteer roles.
In recent months, "change" has been a word often used by many in politics. This Legal Update discusses several important new changes to existing employment and consumer protection laws that are likely to have a significant impact in 2009. Although the breadth and detail of many of these new changes make it impractical to outline their complete scope in this Update, several of their key provisions have been summarized below. Employers should consult with their attorney for more extensive discussions about these new amendments and regulations.The ADA Amendments Act of 2008
Effective January 1, 2009, the ADA Amendments Act (the "ADAAA") modifies the Americans with Disabilities Act (the "ADA"). The ADA applies to employers with 15 or more employees and prohibits employers from engaging in discriminatory employment practices against individuals with disabilities. The ADA defines "disability" and provides guidance to employers and employees alike in determining whether a condition or impairment qualifies as a disability. When an employee has a qualifying disability, the employer must attempt to make a reasonable accommodation in the workplace so the disabled employee can continue to work. An employer is not required to make an accommodation that would impose an "undue hardship" on the employer's business operation. Whether an accommodation is "reasonable" or a hardship "undue," is determined on a case-by-case basis.
The ADAAA effectively expands the scope of a "disability" to include conditions and impairments that previously would not have triggered the protections of the ADA. Now, physical or mental impairments that substantially limit an individual's reading, concentration, thinking, learning, bending, communication, and many other bodily functions may qualify as disabilities in certain situations. Conditions such as epilepsy, diabetes, and bipolar disorder are examples of such impairments. Because more employees are likely to exhibit qualifying disabilities under the amendments, employers must ensure that they make appropriate reasonable accommodations for those employees when required.
The ADAAA not only expands the universe of potential employee disability claims, but also narrows the defenses available to employers for such claims. Previously, litigation of disability claims often focused on whether the particular employee's condition or impairment was a qualifying disability. With the expanded definition of "disability" in the ADAAA, however, litigation may now shift to focus on whether employers have provided reasonable accommodations that allow particular disabled employees to continue to work.
The ADA provides a list of examples of permissible accommodations employers can offer to employees. That list will continue to provide guidance to employers when confronted with disability claims. Nevertheless, the expanded universe of potential disabilities will require creative and proactive measures on the part of employers to ensure that employees receive adequate accommodations for previously unrecognized disabilities.
For employers to avoid litigation, it is critical that they educate managers and supervisors about the changes made by the ADAAA. Employers should update their employee handbooks to properly reflect the ADAAA. Moreover, employers should reconsider past accommodation requests of employees who were denied accommodation because their impairment did not satisfy the ADA's definition of a disability.New Family and Medical Leave Act Regulations
On January 16, 2009, new Department of Labor regulations go into effect making significant changes to the interpretation and enforcement of the Family and Medical Leave Act (the "FMLA"). The FMLA allows employees working for companies with at least 50 employees to take up to 12 weeks of unpaid leave in a 12-month period due to a serious health condition that prevents the employee from performing his or her job. The FMLA also grants unpaid leave to employees to care for a sick family member or a new child. FMLA leave is often said to be "job protected leave" because the FMLA requires employers to restore employees to the same, or a substantially equal, position they held before taking leave upon their return to work.
The new regulations will change the FMLA in several areas. Some of the changes minimize FMLA-related workplace disruptions and allow employees to better ascertain their FMLA rights. For example, employees will now be required to follow their employer's customary call-in procedure when taking FMLA leave, unless there are extraordinary circumstances. Other changes help to combat frivolous use of FMLA leave by allowing employers to consider the FMLA absences of employees when awarding incentive based rewards (such as perfect attendance awards and bonuses) and requiring employees with chronic conditions or impairments to visit a doctor at least twice per year for those conditions. Still others enhance protections for employees from FMLA related discrimination by clarifying that time spent by an employee in "light duty" or other restricted work periods does not count against the employee's FMLA leave entitlement.
In addition to the regulations that affect all employees, several new regulations apply only to military families. For example, prior to the new regulations, where only spouses, children and parents of an injured service member could take FMLA leave to care for their loved one, the new regulations potentially grant aunts, uncles, grandparents, and first cousins FMLA leave to care for service members injured on active duty. In addition, the new rules allow family members of a National Guard service member to take FMLA leave for certain military-related events, including short-notice deployments, counseling, rest and recuperation, and other pre- and post-deployment activities.
The new regulations also continue to require employers to inform their employees of their legal rights under the FMLA. To satisfy this requirement, employers must post updated FMLA posters in prominent areas of their workplace summarizing employee rights under the law, revise employee handbooks to ensure employees are properly informed of their rights under the new regulations, and prepare updated certification forms for employees requesting FMLA leave.Genetic Information Nondiscrimination Act & Genetic Information Privacy Act
An individual's genetic information is sensitive material that can sometimes reveal genetic disorders and predict an individual's susceptibility to disease in the future. Cystic fibrosis and sickle cell disease, among many others, are well known examples of genetically related disorders. The Genetic Information Nondiscrimination Act ("GINA") is a federal law that prohibits health insurers from using genetic information in determining insurance eligibility or premium amounts. It also prohibits employers from discriminating against an individual because of his or her genetic information, or because of his or her refusal to disclose such information. GINA applies to employers, employees, health insurers, and group health insurance plans.
Although employees do not have to provide employers with their genetic information, situations may arise where employers might become aware of an employee's genetic information. For example, employers may become aware of genetic information when requesting medical certification for FMLA leave, or inadvertently through everyday workplace conversations with their employees. With certain narrow exceptions, GINA mandates that employers treat the information as confidential. One such exception allows employers to disclose any employee's genetic information to a public health agency if that information concerns a contagious disease that presents an imminent threat of death or life-threatening illness. Such disclosure could also potentially be necessary in litigation in order for an employer to establish its compliance with the medical certification requirements of laws like the FMLA. To guard against unnecessary and potentially harmful employer disclosures, GINA allows employees to seek back pay, compensatory and punitive damages, and attorneys' fees for employer violations.
The Illinois counterpart to GINA, the Genetic Information Privacy Act ("GIPA"), also applies to employers, employees, health insurers, and group health insurance plans. While GIPA is similar to GINA in many respects, it is also more restrictive than its federal counterpart in several areas. For example, unlike federal law, GIPA prohibits Illinois employers from disclosing genetic information learned through employee wellness programs. Greater money damages are also potentially available to employees under GIPA than under GINA.
Although many issues affecting employer liability are unresolved by GINA and GIPA, the new laws take important steps to protect sensitive genetic information of individuals. Employers should update their employee handbooks to properly reflect these new laws.Abused and Neglected Child Reporting Act
Illinois recently amended the Abused and Neglected Child Reporting Act (the "ANCRA") and now requires that all employers or their information technology workers immediately report any depiction of child pornography that is discovered while installing, repairing, or otherwise servicing any job-related electronic equipment. Employers should report any discovery of child pornography to their local law enforcement agency or the Cyber Tipline at the National Center for Missing & Exploited Children. Employers that report child pornography will be immune from any criminal, civil, or administrative liability in connection with making the report, except if they have unreasonably delayed making their report, or acted grossly unreasonable in any other way. An employer's failure to report a discovery of child pornography could result in a large fine. Employers should implement company policies and update their IT staff and employee handbooks to ensure compliance with these new requirements.Identity Theft Enforcement and Restitution Act of 2008
The Identity Theft and Restitution Act of 2008 strengthens existing protections for business and individual victims of identity theft. Five amendments will make it easier to bring cyber crooks to justice and ensure that victims receive compensation for any intended or actual harm caused by identity theft. First, the amendments allow victims to seek repayment in federal court for the loss of time and money spent restoring their credit and remedying the harms of identity theft. This will greatly benefit victims of identity theft, who often must spend thousands of dollars and countless hours undoing the damage to their credit caused by such thefts. Second, the amendments enable prosecution of hacking crimes even when they involve computers wholly within the same state. Third, in criminal cases, the amendments no longer require that the damage to the computer exceed $5,000. Fourth, the amendments make it a felony to employ spyware or keyloggers to damage ten or more computers, regardless of the aggregate amount of damage caused. Finally, the amendments add two new causes of action to the cyber extortion statute- threatening to obtain or release information from a protected computer and demanding money in relation to a protected computer. The amendments respond to an increasing number of victims of identity theft and aim to close the gap between the existing criminal laws and the ingenuity of modern identity thieves.