E-Newsletter

April 2011

It's Springtime And The Legislation Is Blooming

Thomas P. Krukowski, Esq.

The U.S. Equal Employment Opportunity Commission (EEOC) Finally Issues Its Final Regulations On The Americans With Disabilities Act Amendments Act (ADAAA)

The Final Regulations

The long-awaited final rule implementing the ADAAA regulations was issued by the EEOC on March 23, 2011. The EEOC's 202-page document discusses the final changes and interpretations of the agency's regulations on the ADAAA. The key issues addressed in the document consist of clarifying the definitions of key terms and providing examples of how the EEOC will interpret these concepts in disability claims. Some of the issues include:

• definition of "disability"
  
• "impairment," including pregnancy-related impairments
  
• "major life activity of working"
  
• "regarded as" disabled
  
• "record of" a disability
  
• "durational minimum" for showing disability
  
• the role of "mitigating measures"
  
• who is entitled to "reasonable accommodation"
  

These amendments emphasize greater protections for impaired individuals by expanding the list of "major life activities" to include a total of 38 categories, from the traditional activities of seeing, walking and bending to new functions, including impairments involving normal cell growth (cancer), digestive and reproductive systems; eliminating consideration of mitigating measures, including impairments that are episodic or in remission; and expanding coverage under the "regarded as" prong of discrimination. Further, the EEOC's new definition of "substantially limits" means that the ability of an individual to perform a major life activity will be compared to the ability of most people in the general population.

What Do The Regulations Mean For Employers?

The new regulations state: "The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual's impairment substantially limits a major life activity." Because the definition of "disability" will be interpreted broadly and favorably to any individual claiming disability discrimination, my recommendation to employers in navigating the regulations can be summed up in this easy to remember acronym:

A Assume
D Disability and
A Always
A Attempt to
A Accommodate

I am in the process of analyzing the 202 pages of final regulations and will present a three-hour program for employers to learn how these regulations will affect their policies and how to respond to claims of disability in the workplace. The programs will be offered on April 19, 2011 in Madison and on April 20, 2011 in Milwaukee, WI. If you would like information on these programs, please visit our website at: www.krukowski.com.

Update On Ensuring Uniform State-Wide Family And Medical Leave Benefits (SB 23 And AB 41)

Senate Bill 23 and Assembly Bill 41 were introduced to ensure that family and medical leave benefits are uniform throughout the state by preempting any Wisconsin city, village, town, or county ordinance that would require employers to provide employees with leave from employment to deal with family, medical, or health issues. The bill arose from employer concerns about the Milwaukee Paid Sick Leave Ordinance and the potential for a "patchwork quilt" of different or conflicting leave laws across the state. If passed, local governments would not be able to enact legislation like the controversial Milwaukee Paid Sick Leave Act; further, the bill would void any existing local laws dealing with family or sick leave.

Wisconsin's SB 23 passed in the Senate on March 3, 2011 after all 19 Republican lawmakers voted in favor of the bill. Then, on April 5, 2011, the Assembly Committee on Labor and Workforce Development approved AB 41. That bill is scheduled for an Assembly floor vote on April 12, 2011, when it is expected to receive enough votes to pass. Following passage by the Assembly, Governor Scott Walker would sign the bill into law.

Impact On Milwaukee Paid Sick Leave Ordinance

Passage of SB 23 and AB 41 would void the paid sick leave ordinance in Milwaukee despite the March 24, 2011 decision by the Wisconsin Court of Appeals that reversed and remanded the Milwaukee County Circuit Court's injunction on the implementation and enforcement of Milwaukee's Paid Sick Leave Ordinance. The Court determined that the ordinance approved by voters in November 2008 does not violate any statutory or constitutional provisions as contended by the Metropolitan Milwaukee Chamber of Commerce (MMAC) in its lawsuit. However, the Paid Sick Leave Ordinance cannot be implemented and enforced until the Circuit Court vacates the injunction, which cannot occur until at least 31 days after the date of the Court of Appeals decision (May 24, 2011). If SB 23 and AB41 are passed on April 12, 2011, the debate on the sick leave ordinance will be over.

Conforming The Wisconsin Family And Medical Leave Act (FMLA) With The Federal FMLA

As discussed in the March 2011 Legislative Update, legislation is also pending that would make Wisconsin's FMLA law consistent with the provisions of the federal FMLA. There have been no new developments to Senate Bill 8.

The Fair Employment Act of 2011 (HR 1113)

Because of a perception that companies are rejecting unemployed job applicants, the Fair Employment Act of 2011 was introduced to amend the Civil Rights Act of 1964 to make it illegal for employers to refuse to hire or to lower compensation for a person because of employment status. The legislation defines "unemployment status" as being unemployed, having actively looked for employment during the most recent four-week period, and currently being available for employment.

The bill was introduced on March 16, 2011 by Georgia Representative Hank Johnson because he was concerned about the proliferation of job ads specifying that a candidate "must be currently employed." Because so many people are unemployed through no fault of their own due to the economy and downsizing by employers, Mr. Johnson requested EEOC Chair Jacqueline Berrien to conduct an investigation into possible discrimination against the unemployed. The EEOC held a hearing on the issue on February 16, 2011 where they identified "this troubling trend as a growing threat to the unemployed, especially the long-term unemployed."

If the bill passes, the burden of proof would be on the job applicant to show that he or she was discriminated against based on employment status. Although Johnson concedes that this type of discrimination may be difficult to prove, he believes that the legislation may stop employers from using discriminatory language in their job ads and refusing to look at applications from unemployed applicants.

On April 4, 2011, the bill was referred to the House Subcommittee on Health, Employment, Labor, and Pensions.

If you have any questions regarding these or any other employment or labor law matter, contact Krukowski & Costello, S.C.'s educational services department at (414) 988-8400.