The Equal Employment Opportunity Commission released the much anticipated Final Regulations implementing the ADA Amendments Act (ADAAA). The ADAAA became effective on January 1, 2009. The Final Regulations will take effect on May 24, 2011.
The Final Regulations “make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.” The ADAAA expanded the definition of who is “disabled” and emphasized an employer should focus on whether employers complied with their obligations under the law and whether discrimination, in fact, occurred, not whether individuals are disabled under the law. The Final Regulations provide rules of construction for employers to employ in determining if an individual is substantially limited, including:
· An impairment need not prevent or severely or significantly limit a major life activity to be considered “substantially limiting,” but noting that not every impairment will constitute a disability;
· Construing “substantially limits” broadly and in favor of coverage;
· Determining whether an individual suffers from a disability does not require an extensive analysis, but it requires an individualized assessment;
· Determining whether an impairment substantially limits a major life activity is made without regard to the ameliorative effects of mitigating measures, such as medication or hearing aids, but employers can consider the effects of ordinary eyeglasses or contact lenses on vision impairments;
· Determining whether an impairment substantially limits a major life activity will not usually require scientific, medical, or statistical evidence;
· Finding that an impairment that is episodic or in remission is a disability if it substantially limits a major life activity when active; and
· Finding that impairments lasting fewer than six months can be substantially limiting.
Employers should train supervisors and managers on the employer’s obligations pursuant to the ADAAA and the Final Regulations and provide clear guidelines for interacting with employees and prospective employees.
In Nini v. Mercer Community College, No. A-13/14-09 (N.J. June 1, 2010), the New Jersey Supreme Court upheld the Appellate Division’s 2009 decision holding that a contract renewal is equivalent to a termination; and does not, therefore, fall within the “over 70 exception” in the New Jersey Law Against Discrimination (“NJLAD”). Under the NJLAD “over 70 exception”, an employer is not engaged in an unlawful discriminatory practice if it refuses to accept for employment or [promotion] any applicant/employee over 70 years of age.
If you have any questions relating to the Nini decision or the current status of the NJLAD please do not hesitate to contact Robert A. Tandy, Esq. at (201) 474-7103.
A provision in the recently enacted Patient Protection and Affordable Care Act (more commonly known as the “Health Care Reform Act”) requires employers to provide a “reasonable break time” and a place, other than a bathroom, shielded from view and free from intrusion by co-workers and the public for employees to express breast milk for a nursing child for a period of one year after the child’s birth. This new requirement took effect March 23, 2010.
An employer is not required to compensate the employee for such breaks. Employers with fewer than 50 employees are exempt from this requirement provided the employer can demonstrate allowing such breaks would impose an undue hardship.
Employers are urged to review their nursing break policies to ensure compliance with federal and state laws.
If you have any questions about the new law relating to breaks for nursing mothers contact Robert A. Tandy at (201) 474-7103.
Most New Jersey employers have long operated under the belief that employees have no expectation of privacy in the workplace when using company computers; and, in fact, the employer has the right to review any electronic information contained and/or maintained on work computers. Recently, however, in Stengart v. Loving Care Agency, Inc., the New Jersey Supreme Court created an exception to the “no expectation of privacy” rule holding an employee who exchanges email communication with her attorney through a personal internet based email account using a work computer is privileged attorney–client communication and may not be monitored and/or retrieved.
The Stengart decision stresses the importance of an employer’s need to review and update its policies periodically. The Supreme Court found the company’s policy did not warn employees that personal emails from personal accounts having personal passwords may be stored on a hard drive and reviewed by the company. Although this case involved attorney-client communications, the Court may have opened the door for further litigation in holding: 1) the employee had a subjective expectation of privacy because she used a personal password protected email account (not the Company’s account); 2) the employee had an objectively reasonable expectation of privacy because the Handbook did not address the use of personal email accounts and allowed personal use; and 3) the emails were not illegal or inappropriate such as to potentially cause harm to the company.
If you have any questions relating to your Company’s electronic communication policy, please contact Robert A. Tandy, Esq. at (201) 474-7103.
The Federal Trade Commission recently enacted new guidelines for employers, which opens the door for employer liability for the online comments and/or activities of employees. The FTC’s “Guides Concerning the Use of Endorsements and Testimonials in Advertising” subjects employers to potential liability for employees’ use of social media sites to post comments about company products and services, even if the employer did not authorize and/or direct the employee to post such comments.
What does this mean? Employers could face enforcement proceedings and potential consumer fraud claims for comments posted about company products or services on blogs, LinkedIn, Twitter, MySpace and Facebook even during non-working hours. For example, your company sells “widgets” and one of your employees submits an online post about the widget’s uses and benefits without revealing he/she is an employee of the company, whereby enticing another individual to purchase the product or service in reliance upon the comment. The company may be liable if another individual can establish he/she was enticed to purchase the product and the product was defective or did not perform as “advertised” by the company’s employee.
Employers are urged to update or create a social networking policy to address these recent guidelines.