new-york-law-journal

New ADAAA part 1 – protection for employees

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Employers warned to comply with law or face expensive fines and court settlements

Editor – The following article from The New York Law Journal discussing legal pitfalls for US employers under the new Americans with Disabilities Amendment Act of 2008 (ADAAA). Canada is one of the few G7 countries without comprehensive disability employment protection legislation that protects persons with disabilities in the workforce and in society. Canada has the Charter of Rights and Freedoms but delegated enforcement to the Provinces, except for Federal employment. Progress on disabilities and human rights has moved to the back burner as Canada slips behind the rest of the developed world in its treatment of the largest minority in Canada, the disabled. Part 1 of a 5 part series.

By Barbara E. Hoey, New York Law Journal, March 23, 2009

In January 2009, a federal judge in Pennsylvania doubled the back pay verdict for a female plaintiff, whom a jury had found was fired in violation of the Family Medical Leave Act (FMLA). The plaintiff received a total award of $203,138.40, plus attorneys fees of $156,743. Why such a result? The employer was found to have acted in “bad faith” in firing the plaintiff just after she announced her pregnancy. The HR manager (who was also an attorney) had “thought” that the plaintiff was not protected by the FMLA because she was on probation. However, the HR manager had done no research and had not contacted the company counsel.1

The court severely punished the counsel for not taking “affirmative steps” to understand its FMLA obligations, and for making what the judge deemed a “cursory determination” to fire the plaintiff.

How do you avoid such a result? Preparation and training. There is no substitute for taking the time to prepare and understand the law, and then training managers so that they do not run afoul of legal obligations.

The year 2009 marks the beginning of a “brave new world” for employers in handling employees with health issues. The “ADA Amendment Act of 2008″ (ADAAA) is now the law. At the same time, new regulations under the Family Medical Leave Act became effective, and in September 2009 the Genetic Information Non-Discrimination Act (GINA) will go into effect. These laws and regulations together create a broad class of employees who can claim they are “disabled,” and are potentially entitled to protected leave and to seek job accommodations. On top of that, each of these laws contain private rights of action, allowing employees who believe that they have been discriminated or retaliated against to sue their employer.

In order to avoid such suits, employers must understand their obligations, update their policies, and train their managers and HR staff. If you do not take the time now to learn how to navigate the choppy seas of disability law in the United States, you are setting up your company for a potential tsunami.

Barbara E. Hoey is a partner and co-chair of the labor and employment practice group at Kelley Drye & Warren. She can be reached at bhoey@kelleydrye.com.

Endnotes:

1. In fact, plaintiff had worked for the employer’s predecessor, so was qualified for FMLA leave under Department of Labor regulations, which applied to an employer’s “successor in interest,” 29 USC §2611(2)(A)(ii). Brown v. Nutrition Mgmt Services, 2009 U.S. Dis. LEXIS 4199 (E.D. Pa. 2009).

2. School Board of Nassau County v. Arline, 480 U.S. 273 (1987).

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