Employer Beware 2009 to Bring Significant Employment Law Changes by hiv17219

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									VOLUME 4, ISSUE 2                                                                                    FEBRUARY 2009


Employer Beware: 2009 to Bring Significant Employment Law Changes

By Josephine B. Vestal                 the ADA. While the term “dis-           growth, bowel and bladder, respi-
Employment Attorney and Member         ability” will continue to be defined    ratory, immune, neurological and
Williams Kastner
                                       as an impairment which substan-         brain, circulatory, endocrine and
                                       tially limits one or more major life    reproductive functions.
                                       activities, a record of such impair-
                                                                               In addition to the ADAAA’s ex-
                                       ment or being regarded as having
                                                                               pansion of the definition of “dis-
                                       such an impairment, the ADAAA
                                                                               ability,” the legislation expressly
                                       makes significant changes to the
                                                                               states that: (1) “mitigating mea-
                                       definition of the key terms “sub-
                                                                               sures” (like medication, equip-
                                       stantially limits” and “major life
                                                                               ment, learned behavior, and de-
                                       activities.” The legislation does
                                                                               vices (other than eyeglasses or
                                       not define “substantially limits,”
                                                                               contact lenses) etc.) are not to be
                                       but it expressly rejects the U.S. Su-
                                                                               considered in determining whether
                                       preme Court’s definition as requir-
                                                                               someone has a disability; and (2)
                                       ing an impairment that prevents
                                                                               an impairment that is episodic or in
                                       or severely restricts the individual
                                                                               remission is a disability if it would
                                       from doing activities that are of
                                                                               substantially limit a major life ac-
                                       central importance to most peo-
                                                                               tivity when active. In other words,
                                       ple’s daily life. According to Con-
Healthcare employers will encoun-                                              all conditions are to be evaluated
                                       gress, this threshold is too high.
ter significant changes in the legal                                           in their active, untreated state, re-
                                       The ADAAA directs the EEOC to
landscape as new legislation giv-                                              gardless of the actual abilities of
                                       issue regulations consistent with
ing more rights to employees be-                                               the individual.
                                       this viewpoint. So far the EEOC
come effective in 2009. Some of        has not been able to do so, but we      The ADAAA also requires that
the more significant are discussed     can anticipate a much lower stan-       “disability” be interpreted broadly.
below. We can also anticipate that     dard requiring limitation of only       This broadened definition of “dis-
the trend of granting employees        one major life activity, which limi-    ability” also applies to other sec-
additional protections will con-       tation may or may not impact the        tions of the ADA including public
tinue and even accelerate in 2009      individual’s employment. With           accommodation and transporta-
with the changing of the guard na-     regard to covered “major life ac-       tion, as well as the Rehabilitation
tionally.                              tivities” the non-exclusive list of     Act. With the expanded defini-
Americans With Disabilities            such activities has been broadened      tions of “disability” “major life ac-
Amendments Act                         and includes reading, lifting, bend-    tivity” and “impairment” Congress
The Americans With Disabili-           ing, communicating and thinking         is moving in the same direction as
ties Amendments Act of 2008            among others. Major life activi-        the expansive Washington Law
(ADAAA), effective as of Janu-         ties also include “the operation of     Against Discrimination (WLAD),
ary 1, 2009, will significantly        a major bodily function” which          but the WLAD goes further in
broaden the scope and impact of        non-exclusively includes normal         covering a person who has a con-
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dition that is not currently a dis-                 per caregiver unless he or she has      January 16, 2009. The regulations
ability, but which with reasonable                  a new covered condition. An em-         provide that “exigency” means to
medical likelihood would become                     ployee may take an additional 26        address events which arise out of
substantially limiting without the                  week leave in a different 12 month      the military member’s active duty
proposed accommodation.                             period to care for another covered      status, like making arrangements
Family and Medical Leave Act                        service member or the same ser-         for childcare or schooling, attend-
Amendments                                          vice member with a new covered          ing programs, certain rest and
In 2008, Congress amended the                       condition. Leave to care for the        recuperation activities, and addi-
Family and Medical Leave Act                        covered service member together         tional events if the employer and
to permit a spouse, son, daughter,                  with any other FMLA leave taken         employee agree that the event is
parent or next of kin to take up to                 during the 12 month period may          an exigency and agree to the tim-
26 work weeks of leave to care for                  not exceed 26 weeks.                    ing and duration of the leave. The
a member of the Armed Forces,                       Amendments to the FMLA also             new regulations also address issues
including a member of the Na-                       permit an employee to take regu-        regarding regular FMLA leave and
tional Guard or Reserves, who is                    lar FMLA leave for “any qualify-        contain new certification and other
undergoing medical treatment, re-                   ing exigency” arising out of the        forms.
cuperation, or therapy, is on outpa-                fact that a spouse, son, daughter or    Domestic Violence Leave Law
tient status, or is otherwise on the                parent of the employee is on active     Passed in 2008 and effective on
temporary disability retired list be-               duty in the Armed Forces (or has        April 1, 2008, the Domestic Vio-
cause of a serious injury or illness                been notified of an impending call      lence Leave Law (RCW 49.76) al-
incurred in the line of duty. The                   or order to active duty) in support     lows victims of domestic violence,
individual for whom care is pro-                    of a contingency operation. The         sexual assault or stalking to take
vided may not be a former mem-                      Department of Labor was charged         reasonable leave from work (paid
ber of the military. This leave may                 with defining “exigency” and has        or unpaid) to take care of legal or
be taken once per service member                    done so by regulations effective on     law enforcement needs and to ob-



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                                                                          -2-
tain health care including counsel-     However, as of January 1, 2009, all    than 50 employees. This covers
ing and participate in safety plan-     409A transition relief expired and     financial requirements (deduct-
ning including relocation. Family       all formerly non-compliant plans       ibles, copays, etc.) and treatment
members may also take leave to          must be in full documentary com-       limitations (frequency, number of
assist the victim. This law ap-         pliance. Failure to comply (either     visits as well as annual and life-
plies to all employers, regardless      operational or documentary) may        time limits). There is a provision
of size. The employee is entitled       subject affected employees to im-      allowing a plan to elect temporary
to restoration to pre-leave posi-       mediate taxation on amounts pay-       exemption from the parity law if
tion upon return and maintenance        able plus penalties and interest. On   the group health plan experiences
of health insurance benefits dur-       December 5, 2008, the IRS issued       an increase in actual total costs un-
ing the leave. Retaliation against      new guidance under Section 409A        der defined circumstances.
an employee for exercising rights       that dealt with (1) calculation of     The foregoing is only a general
under this legislation is prohibited.   amounts includable in income un-       summary of the new legislation,
The legislation contains no limita-     der, and additional taxes imposed      portions of which are very com-
tion on the duration of the leave.      by, Section 409A; and (2) correc-      plex. Employers are advised to
409A Deferred Compensation              tion methods for specific types of     consult with legal counsel regard-
                                        failures, though at this time not      ing requirements in any particular
Section 409A of the Internal            plan document failures.
Revenue Code made significant                                                  situation.
changes to tax rules governing          Mental Health Parity
non-qualified deferred compensa-        As part of 2008 bailout legislation,
                                                                               Josephine B. Vestal is an employ-
tion plans—which includes any           Congress passed and President
                                                                               ment attorney and Member of Wil-
plan agreement or arrangement           Bush signed the Mental Health
                                                                               liams Kastner. She can be reached
between an employee and em-             Parity and Addiction Equity Act of
                                                                               at jvestal@williamskastner.com.
ployer in which there is a legally      2008. The law becomes effective
binding requirement for compen-         on January 1, 2010. This law was       Williams Kastner has been pro-
sation that is or may be payable        designed to end the disparity in       viding legal service to health care
in a later tax year. Transitional       insurance benefits between men-        providers and other clients since
regulations effectively delayed the     tal health/substance abuse disor-      1929. It has offices in Seattle and
date most employers needed to be        ders and medical/surgical benefits     Tacoma, Washington and Port-
in compliance to January 1, 2009.       for group health plans with more       land, Oregon.

Reprinted with permission from the Washington Healthcare News. To learn more about the Washington
Healthcare News visit wahcnews.com.




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