New, Pending HR Rules May Affect Your Workplace

by Tracy Ostroff
Contributing Editor

How do you . . . understand new and pending federal workplace rules that affect employees and employers?

Summary: New federal laws, proposed bills, and notable revisions to existing federal measures will widen protections for workers under the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA), among others. The scope of these changes, says an employment lawyer, will impact managers and executives beyond human resources broadly, and may particularly affect the many smaller and midsize architecture firms where the owner serves double duty as the HR manager.

Christine T. Cossler, an employment and labor law attorney with the Cleveland law firm of Walter & Haverfield LLP, outlines some of the new laws and revised legislation that will affect day-to-day business operations and employee relations in 2009 and beyond:

Americans with Disabilities Amendment Act (ADAA)—Amendments to the original ADA will create a larger group of employees to be deemed disabled and protected under the law. Employers will need to be even more careful when making decisions affecting applicants and employees who may have physical or mental impairments. Cossler explains that one of the changes will require employers to ignore all mitigating measures, such as hearing aids or other assistive devices, when making the determination for reasonable accommodations.

Genetic Information Non-Discrimination Act (GINA)—As of November 2009, this new law will make it unlawful for employers with 15 or more employees, employment agencies, labor organizations, and insurance carriers to discriminate against persons based upon genetic information indicating a predisposition to chronic diseases. GINA will prevent employers from making employment decisions based on a concern that an applicant, employee, or dependent with a genetic predisposition for certain chronic medical conditions will place a financial burden on the employer’s group medical insurance plan.

Federal Healthy Families Act—This pending bill, which President Obama advocated during his campaign and supported as a senator, aims to provide paid sick leave to ensure that Americans can address their own health needs and the health needs of their families. It would require covered employers to provide a minimum paid sick leave and employment benefits of seven days annually for those who work at least 30 hours a week and pro-rated days or hours of sick leave with pay and benefits annually for employees who work fewer than 30 hours, but at least 20 hours a week (fewer than 1,500, but at least 1,000 hours per year).

Employee Free Choice Act—Another bill Rep. George Miller (D-Calif.) introduced in early 2007 seeks to amend the National Labor Relations Act to better enable employees to form, join, or assist labor unions and, according to proponents, better curtail unfair labor practices. See the bill Rep. Miller introduced in the 110th Congress (but has not yet introduced in this Congress). Read more about the issue on the AIArchitect blog.

Employment Non-Discrimination Act of 2007 (ENDA)—Another bill that did not make it out of the 110th Congress and may resurface, ENDA would prohibit employment discrimination on the basis of sexual orientation; “perceived orientation,” and sexual orientation of persons with whom employee/applicant is associated. (ENDA would not apply to employers with fewer than 15 employees.)

Proactive approach
“Every employer wants to have a healthy relationship with their employees, and to have a healthy, collegial work environment,” Cossler says. “And employees don’t want to feel that they are being treated unfairly. The best approach is a proactive approach.”

For smaller companies that may not have a separate HR manager, Cossler says her firm sends out client alerts that summarize the key points of employment issues. “If somebody does not have that resource available, another great option is either the Department of Labor Web site or the Equal Employment Opportunity Commission Web site, where they often have updates regarding new laws and changes and what employers need to be aware of. And oftentimes there will be periodic e-mails advertising seminars on changes that have been made or will be made soon,” Cossler says.

In the end, the burden is on the employer. Ultimately, there is no provision in the law to say, “I never got notice.”

In the end, the burden is on the employer. “Ultimately, there is no provision in the law to say, ‘I never got notice.’” Also, Cossler says, “It’s very important that employees make their concerns known, because the employer can’t address something the company doesn’t know about. If it is brought to their attention, they can work with the employee to fix it.”

Educating employees
Cossler says employers can offer information to workers on their rights via an employee handbook, an intranet site, if one exists, and through face-to-face meetings. “In times when it is a particularly active year, like this, the employer may want to consider issuing stand-alone supplements to the employee handbook to cover all the changes,” she advises. “But at a minimum, we do want to have an employee handbook in place and a mechanism to keep track of the fact that the employees did receive it.”

By human nature, employees may be inclined to sign an acknowledgment for paperwork they have not completely read or do not fully understandCossler also notes that employers must be aware that, by human nature, employees may be inclined to sign an acknowledgment for paperwork they have not completely read or do not fully understand. Her firm advises some kind of additional face-to-face training or seminars, depending on the size of the employer, on general policies and to cover any changes that have occurred in the past year. She says it can be handled in-house or, even more effectively, by someone from outside the firm.

She says she does see companies joining together to provide information to employees. “If the employers are members of a large organization, like the AIA, someone there can set up a joint training or informational session.”