It seems like 2009 has flown by. Things are continuing to stay busy in labor and employment law, and we hope you will find the articles contained in this edition of the Employment and Labor Law Newsletter beneficial to your practice. Remember, it is never too early to submit an article for publication, so if you have an article that you would like to have published, please e-mail Kris Cato at firstname.lastname@example.org for consideration in the next issue. For everyone who was able to attend the N.C./S.C. Employment and Labor Law CLE in Charleston on October 23-24, the Section appreciates your attendance and participation. For those of you who were unable to attend this year, the CLE was recorded and will be available on the S.C. Bar Web site. We had some excellent speakers discussing timely topics in employment and labor law with nearly 200 attendees this year and are already looking forward to next year when the N.C. Bar Assoc. Employment and Labor Law Section will host the event in Asheville at the Grove Park Inn.
The S.C. Bar Convention will be January 21-24, 2010, at Kiawah Island Golf Resort. You should have already received your registration materials from the Bar. The Section will again host a half-day program on Friday morning, January 22, from 8:30 to 11:45. We look forward to seeing the Section members who can join us. If you have any questions, concerns or suggestions for improving the quality of this newsletter, please do not hesitate to contact me or Tara Smith at the S.C. Bar.
On October 28, 2009, President Barack Obama signed the National Defense Authorization Act (NDAA) for the 2010 fiscal year, which includes provisions that expand the military leave entitlements of the Family and Medical Leave Act (FMLA). The NDAA amends both the “qualifying exigency” leave and military caregiver leave that became effective in January 2008.
Q: What specifically in the FMLA does this affect?
Q: How has “qualifying exigency” leave been amended?
Q: How much “qualifying exigency” leave is an employee entitled to?
Q: Did Congress change the reasons that an eligible employee can take “qualifying exigency” leave?
Q: How has military caregiver leave been amended?
First, the new law extends military caregiver leave to eligible family members of veterans who were members of any branch of the military at any time within five years of receiving medical treatment that triggers the need for military caregiver leave. Now, employees who are family members of current service members or veterans that are undergoing medical treatment, recuperation or therapy for a serious injury or illness incurred in the line of duty may take caregiver leave of up to six months as long as the veterans were members of the military within five years of receiving such treatment. This means that now a family member can take up to 26 weeks of FMLA leave to care for a veteran if he or she seeks medical treatment for a serious service-related injury or illness, incurred while in the line of duty, within five years of serving in the military. Employers do not have the option of using the typical FMLA calendar-year method for military caregiver leave—the 12-month period begins when the employee begins using caregiver leave.
Second, the new amendment expanded the definition of a “serious injury or illness” for purposes of determining eligibility for military caregiver leave. It has been expanded to include the aggravation by an active duty service member in the Armed Forces of existing or pre-existing injuries. Thus, employees may now take military caregiver leave for a family member whose pre-existing injury or illness was aggravated while on active duty. As for veterans, the definition requires that the injury or illness may manifest itself before or after the Armed Forces member became a veteran.
Q: When do the new amendments take effect?
As the first step in revising the regulations, the EEOC approved a Notice of Proposed Rulemaking (NPRM). The NPRM proposes changes both to the EEOC’s regulations and the EEOC’s Interpretive Guidance, which is published as an appendix to its ADA Title I regulations. The NPRM was published in the Federal Register on September 23, 2009, and is available from the Commission’s Web site, along with a question-and-answer guide about the proposal and instructions for submitting public comments.
The proposed regulations carried a 60-day period for public comment, which ended November 23, 2009. The EEOC will consider the comments received and either issue final regulations and provide an effective date on which the regulations will be implemented, or the EEOC will have another round of comment and revision. There may be several rounds of comment and revision prior to the issuance of final regulations.
The ADAAA and the proposed regulations make it easier for an individual alleging employment discrimination based on disability to establish he/she meets the ADA’s definition of “disability.” This article addresses some of the key changes included in the proposed regulations.
Per Se List of Disabilities
Impairments Substantially Limiting to Some
An impairment may substantially limit a major life activity and qualify as a disability under the “actual disability” or “record of disability” prongs of the definition even if it lasts, or is expected to last, for fewer than six months of disability. However, “[t]emporary, non-chronic impairments of short duration … such as the common cold, seasonal or common influenza, a sprained joint, minor or non-chronic gastrointestinal disorders, or a broken bone that is expected to heal completely” usually will not be a disability.
Under the current regulations, whether an individual can perform a major life activity is compared to how an “average person in the general population can perform” a major life activity. Under the proposed regulations, whether an individual can perform a major life activity is “compared to most people in the general population,” often using a “common-sense standard, without resorting to scientific or medical evidence.” In addition, prior factors currently considered in determining whether an impairment is “substantially limiting”—specifically, the nature, severity and duration of the impairment and the permanent or long-term impact of the condition—are eliminated.
Major Life Activity
The first list identifies the following activities: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, interacting with others and working. Three of these activities—reaching, sitting and interacting with others—are new and were not in the text of the ADAAA.
The second list identifies major bodily functions, including functions of the immune system, special sense organs and skin; normal cell growth; and digestive genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal and reproductive functions. Many of the major bodily functions, such as special sense organs and skin, genitourinary, cardiovascular, hemic, lymphatic and musculoskeletal are new and were not listed in the text of the ADAAA.
Substantially Limited in Working
“Type of work” includes jobs with similar qualifications or job-related requirements. It can be determined by reference to the nature of the work such as commercial truck driving, assembly line jobs, food serve jobs, clerical jobs or law enforcement jobs, or to job-related requirements, such as repetitive bending, reaching or manual tasks; repetitive or heavy lifting; prolonged sitting or standing; extensive walking; driving; working under certain conditions, such as in workplaces characterized by high temperatures, high noise levels or high stress; or working rotating, irregular or excessively long shifts.
Episodic Impairments or Impairments in Remission
“Record of” a Disability
“Regarded as” Having a Disability
For an individual to meet the requirements under the “regarded as” prong, the actual or perceived impairment must be more than minor and last six months or more. Even if an individual meets the requirements under the “regarded as” prong, the individual is not entitled to reasonable accommodations.
The proposed regulations are not binding until issued in final form; however, the proposed version is important to know because it demonstrates the EEOC’s current views regarding the ADAAA. The regulations emphasize the determination of whether an individual is disabled should not be the primary focus under the ADA. Instead, the focus should be on the employer’s efforts to accommodate the employee. Therefore, employers will be better able to defend ADA lawsuits by showing they made a good faith effort to accommodate the employee rather than by challenging the employee’s disability.
It is important to note the NPRM only proposes revisions to the definition of “disability.” The NPRM, like the ADAAA, does not change the ADA’s analysis of employer defenses such as what constitutes a reasonable accommodation or whether the accommodation requested would present an undue hardship or pose a direct threat.
On June 4, 2008, South Carolina passed a comprehensive immigration law touted by many as one of the toughest immigration laws in the nation. Employers are greatly impacted and need to understand what lies ahead. Below we will focus on E-Verify—a “safe harbor” and main component of the new law.
Examples of public employers are cities, public school districts, etc. Although the term “contractor” seems fairly broad, the Act limits the definition to those businesses contracting with a public employer for the physical performance of manual labor where the contract value is at least $25,000 over a 12-month period (or $15,000 if the contract involves a political subdivision of the state). Private employers are those businesses that do not fall within one of the other two categories.
Size and Compliance Time Frames
Private employers have the option of using E-Verify or complying with the license or identification rules as well. If a business has more than 100 employees, the employment verification provisions went into effect on July 1, 2009, while those with less than 100 employees have until July 1, 2010 to comply.
E-Verify v. Driver’s License/Identification
Remember that the S.C. employment verification provisions do not void the employer’s obligation to comply with the federal I-9 rules. Employers must still complete the I-9 form for all new hires within three days of hire. The employer examines the original documents presented by the employee and then records the appropriate information in Section 2 of the I-9 form. Federal law prohibits the employer from requesting specific documents from List A or Lists B and C from the employee.
If an employer elects to enroll in E-Verify in order to comply with the S.C. employment verification provisions (www.dhs.gov/E-Verify), the employer enters the I-9 information into the E-Verify system, which checks three databases—Department of Homeland Security, Social Security Administration and Department of State—to determine whether the employee is authorized for employment. The employer should keep a copy of the E-Verify result with the employee’s I-9 file. E-Verify is a “safe harbor” under the S.C. law, and the employer will not be deemed to have knowingly hired or continued to employ an authorized worker by relying upon an E-Verify result.
The employer can also examine the employee’s driver’s license or state identification card to confirm employment authorization. Some believe this approach is inconsistent with federal law, which precludes the employer from requiring certain documents to complete Section 2 of the I-9 form. Under this compliance method, the employee must either possess or qualify for a state driver’s license or identification card from South Carolina or from another state listed on LLR’s Web site (Note: There are approximately 22 states currently listed on the LLR Web site).
Federal v. State Compliance
On July 1, 2009, all S.C. employers were given a S.C. employment license permitting them to hire and employ workers in the state. If the employment license is suspended or revoked, an employer may not hire and/or employ workers in South Carolina. If an investigation reveals that an employer knowingly and/or intentionally hired or employed unauthorized workers, the employment license can be suspended or revoked.
Finally, criminal penalties can be assessed if the employer or agent of the company engaged in harboring, shelter, concealing or other illegal conduct on behalf of an immigrant worker.
Labor Management Relations Committee
Equal Employment Opportunity Committee
Occupational Safety & Health Committee
Immigration Law Committee
2010 Bar Convention
Section Spring CLE & Reception
NC/SC Employment & Labor Law Conference
Kristine L. Cato
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This is a newsletter for the South Carolina Bar’s Employment and Labor Law Section. The South Carolina Bar and the Section council members reserve the right to refuse to publish any submission which is not consistent with their goals and standards. Articles that are published reflect only the opinions of their authors; they do not represent or reflect any positions held by the South Carolina Bar or the Section officers and council members. It is the policy of this newsletter that on all submissions of original articles, the authors assign their copyright in the work to the South Carolina Bar. Publisher may reprint, or authorize other entities to reprint, the material as deemed appropriate. The publisher has the right to authorize the reproduction, adaptation, public distribution and public display of the article as a contribution to this newsletter in electronic media, computerized retrieval systems and similar forms; such authorization includes use of the article anywhere in the world by means of public display, conversion to machine readable form and reproduction and distribution of copies. The South Carolina Bar is not required to secure the consent of the author before exercising the above named rights. In addition, the Bar has no duty or responsibility to negotiate, collect or distribute any royalties in connection therewith.