February 5th, 2010 | By Paul Cherner
The U.S. Dept. of Labor has been updating its website on a weekly basis offering additional information re the COBRA Subsidy (65% of COBRA premium) under the ARRA and should be referred to if you have any questions about administering this benefit.
Legislation is pending in the House and will be introduced in the Senate to extend the current deadline that employees must be involuntarily separated on or before Feb. 28, 2010 in order to be eligible for this subsidy. The current House version extends the date to June 30, 2010, while President Obama’s recent federal budget submission suggested extending the date to December 31, 2010. Given continued high unemployment rate reports, it is likely that an extension will be enacted this month.
December 22nd, 2009 | By Paul Cherner
On December 21, 2009, President Obama signed the Department of Defense appropriations bill. Buried within that lengthy legislation are provisions that extend the COBRA subsidy for certain employees who have been or will be involuntarily terminated during a designated period of time.
The following are some of the key points of this new legislation, which becomes effective December 31, 2009:
1.) The subsidy (65% of the COBRA premium which is paid by the federal government through payroll tax credits) will be offered to employees who are involuntarily terminated and become eligible for COBRA before February 28, 2010.
2.) The length of time that an individual can receive the COBRA subsidy has been increased from the prior limit of nine (9) months to a new limit of fifteen (15) months.
3.) The extension to fifteen (15) months is retroactive to all individuals currently receiving the subsidy and will apply to any individuals whose initial nine (9) month subsidy expired.
4.) The extension is also retroactive to those individuals who lost COBRA coverage because they stopped paying premiums after their nine (9) month subsidy expired. Those individuals may be able to re-enroll in COBRA and receive the additional subsidy without any gaps in coverage. Plan Administrators will need to identify such individuals and send them a notice of their right to this option.
The U.S. Department of Labor continues to issue: updated Fact Sheet, FAQs, Job Lost Poster and Poster for Employees and new Model Notices. It is important for employers and plan administrators to carefully review and monitor the situation for any individuals who are or were eligible for the COBRA subsidy or who become eligible for it before February 28, 2010 and to ensure that timely notices of their rights are being sent. On January 22, 2010, the USDOL held a compliance webcast re the extension of the COBRA subsidy, which you can view by clicking on this archive.
December 8th, 2009 | By Paul Cherner
The U.S. Department of Labor has just issued a series of questions and answers pertaining to the employment law implications with respect to individuals who are off from work due to the H1N1 flu virus pandemic. The first Q & A pertains to the FLSA and the second Q & A pertains to the FMLA.
November 23rd, 2009 | By Paul Cherner
The EEOC, like the NLRB, has several presidential nominees to the agency who are waiting for confirmation by the U.S. Senate.
In July, 2009 President Obama nominated Jacqueline A. Berrien, associate director-counsel of the NAACP Legal Defense and Educational Fund, to serve as Chair of the EEOC. In September, 2009, the President nominated Chai R. Feldblum, a professor of law and director of the Federal Legislation Clinic at the Georgetown University Law Center in Washington, D.C., to be an EEOC Commissioner.
Recently, the President nominated Victoria A. Lipnic, the former Assistant Secretary of Labor for Employment Standards, to be an EEOC Commissioner. Lipnic’s nomination, if confirmed by the Senate, would fulfill the requirement that two of the five commissioners not be from the President’s political party. Constance Barker, whose term expires in 2011, is the other Republican Commissioner.
In late July, 2009, the Senate confirmed President Obama’s nomination of EEOC Vice Chair Christine Griffin as Deputy Director of the Office of Personnel Management, but, according to the rules governing the EEOC, Griffin will remain an EEOC Commissioner until her successor is confirmed by the Senate. On October 22, 2009, President Obama nominated P. David Lopez to be General Counsel of the EEOC . Lopez has worked for the EEOC for 13 years and is currently a Supervising Trial Attorney in the EEOC’s Phoenix District Office.
November 13th, 2009 | By Paul Cherner
The Centers for Disease Control and prevention (“CDC”) has just issued a report indicating that in the past six months 22 million Americans have become sick with the H1N1 influenza virus (a/k/a the “swine flu”), of which 4,000 have died. As this pandemic shows no signs of abating, employers are faced with many legal issues in addition to being concerned about the health and safety of their workers, customers and clients, while at the same time attempting to determine how best to carry on their businesses under these circumstances.
An excellent reference source for most questions pertaining to this pandemic is the federal government’s website http://www.flu.gov., which contains very useful and specific information, as well as links to issues of specific concern to various businesses.
The U.S. Department of Labor has just issued two sets of questions and answers concerning the impact of the Fair Labor Standards Act (“FLSA”) and the Family and Medical Leave Act (“FMLA”) on issues pertaining to employees absences from work and payment to employees who are directly or indirectly affected by the H1N1 flu virus. Additional guidance is provided by the EEOC with respect to the impact of the Americans with Disabilities Act (“ADA”) on this pandemic situation.
As this situation has evolved, the federal government has continued to issue additional information and guidelines, some of which modified prior guidance. Accordindly, continued monitoring of the main website - www.flu.gov is advised.
November 2nd, 2009 | By Paul Cherner
The EEOC has revised its required employer postings to reflect recent changes in the EEO laws. The new poster includes two new laws, the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”) and the Genetic Information Nondiscrimination Act of 2008 (“GINA” – effective November 21, 2009.) The revised poster also includes updates from the Department of Labor and should be posted as soon as possible.
Employers may obtain the new required postings by either :
- Printing the EEOC’s supplemental posting and posting it next to the EEOC’s September 2002 “EEO is the Law” poster or the OFCCP’s August 2008 “EEO is the Law” poster, or
- Printing and posting the EEOC’s comprehensive November 2009 version of the “EEO is the Law” poster, or
- If you need multiple copies and/or non-English language versions, ordering the new poster through the EEOC Clearinghouse (the posters are on “back order” now, but are expected to be available before GINA becomes effective on 11/21/09.)
October 27th, 2009 | By Paul Cherner
The military caregiver leave provisions of the FMLA were expanded with the recent enactment of section 565 of the National Defense Authorization Act of 2010, as follows:
(1) Eligible employees will be able to take Military Caregiver Leave for covered servicemembers who are veterans undergoing medical treatment, recuperation, or therapy, or who are otherwise in an outpatient status, for a serious injury or illness and who were a member of the Armed Forces (including the National Guard and Reserves) at any time during the period of 5 years preceding the date on which the veteran undergoes that medical treatment, recuperation or therapy. An eligible employee may take up to 26 weeks of leave during a single 12 month period, which commences on the date that the employee first takes such leave. [Note: Previously, such leave was only available to care for current members of the Armed Forces, Guard, or Reserves.]
(2) “Serious illness or injury” is now defined as an injury or illness that was incurred by the member or by a veteran while in the line of duty on active duty in the Armed Forces or which existed before the beginning of the member’s active duty and was aggravated by service in the line of duty while on active duty in the Armed Forces and that may render that member medically unfit to perform the duties of the member’s office, grade, rank, or rating . [Note: These changes have now included veterans as well as certain preexisting conditions that were aggravated while on active duty].
(3) Qualifying Exigency Leave will now also cover members of the regular Armed Forces during their deployment to a foreign country. [Note: Prior to these amendments, Qualifying Exigency Leave was only available for covered military members in the Reserves or Guard when ordered to active duty during the deployment of the member to a foreign country.]
These changes became effective on October 27, 2009, the date the law was signed by President Obama.
Employers should review and revise their FMLA leave policies and practices to reflect these new amendments.
Note: A special nod of thanks to the FMLA blog for tipping us off about these important changes that are buried within that massive new defense authorization act.
September 23rd, 2009 | By Paul Cherner
The EEOC has just published for public comment proposed new regulations interpreting the Americans with Disabilities Amendments Act of 2008 (“ADAA“). The ADAA, which became effective January 1, 2009, required the EEOC to revise its ADA regulations and to redefine the term “substantially limits” in accord with the Congressional goal of defining the term “disability” in favor of broad coverage to the maximum extent permitted by the ADA.
The proposed new rules reiterate that the definition of “disability’ should be broadly interpreted. The new rules liberally interpret the term “substantially limits” by providing that a limitation need not significantly or severely restrict a major life activity in order to meet the ADA standard for disability. The definition of “major life activities” has been expanded and now include factors on two non-exhaustive lists, including one that identifies major bodily functions.
These rules provide that actions based on an impairment should also include actions based on symptoms of an impairment. They also provide that qualification standards, employment tests or other selection criteria based on an individual’s uncorrected vision should not be used unless shown to be job-related for the position in issue and consistent with business necessity.
There is a 60 day period for public comment and then a period of time in which the EEOC will consider the comments before issuing final rules, which will probably not occur before early 2010. However, all employers should be reviewing their ADA policies and practices NOW to take into account the new realities of dealing with a broader and more liberal ADA. The EEOC has published questions and answers regarding their proposed new ADAA rules and employers are advised to review that document with legal counsel and their HR team.
July 17th, 2009 | By Paul Cherner
President Obama has nominated Jacqueline A. Berrien to be Chair of the Equal Employment Opportunity Commission. Ms. Berrien has been associate director-counsel of the NAACP Legal Defense and Educational Fund for the past five years. She previously worked for the Ford Foundation and the American Civil Liberties Union.
There appears to be a compromise gathering consensus concerning the enactment of the Employee Free Choice Act (“EFCA”). See our prior post for a description of the key provisions of this proposed legislation. The compromise that is emerging will be to drop the card check recognition provisions in favor of quick union elections (five to ten days) to be conducted by the NLRB. Left in the bill for now are the provisons providing for arbitration of first time union contracts and increased penalties for unfair labor practices committed during organizing drives and/or first contract negotiations. It is predicted that the Senate will probably not deal with this legislation until September at the earliest.
June 9th, 2009 | By Paul Cherner
The Family and Medical Leave Act (“FMLA”) was amended last year to provide for two new forms of leave for eligible employees who have a family member on active duty in the armed forces. These amendments afford eligible employees the opportunity to take “military caregiver leave” to care for covered service members. The other form of leave provided is “qualifying exigency leave” for any qualifying event that arises from a family member being called to active duty or receiving notice of an impending call to active duty status.
The U.S. Department of Labor has issued detailed regulations implementing these two new forms of leave for employers with 50 or more employees. Employers are required to update their FMLA policies, post revised FMLA notices and provide for these two new additional forms of leave for their eligible employees. For an indepth discussion of these new forms of leaves, see this author’s article “Leave for Military Family Members – What Employers Need to Know” in this week’s online version of Crain’s Workforce Management and the December 10, 2008 post in this blog..
