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Hot Topics in Labor & Employment Law

Government regulation of labor and employment matters comes in waves. In the 1990's, the wave included the Americans with Disabilities Act of 1990 and the Family and Medical Leave Act of 1993. Another significant wave began in 2008 and continues.

Americans With Disabilities Act Amendments Act of 2008 ("ADAAA")

The ADAAA overrules two U.S. Supreme Court cases by broadening the definition of a disability. Congress attempted to encourage employers to focus on accommodating disabilities rather than on the disability itself. The ADAAA also provides that it is not appropriate to consider mitigating measures such as medication in determining whether someone has a disability.

Fair Pay Act of 2009 ("FPA")

The FPA overruled a U.S. Supreme Court decision that limited the time period for a plaintiff to bring suit after learning of discrimination resulting in disparate pay. Under the FPA, even though a discriminatory act may have occurred years before, each paycheck received is a new act of discrimination on which a claim can be filed. Back pay may be awarded for up to two years prior to the filing of a claim. The FPA will likely result in increased claims for unequal pay and significant employer liability.

American Recovery and Reinvestment Act of 2009 ("ARRA")

The ARRA requires employers to provide a subsidy for COBRA. Assistance eligible individuals who are involuntarily terminated during the period of September 1, 2008 through December 31, 2009 only pay 35% of the COBRA premium. The employer is required to pay 65% of the premium and can take a credit on their federal quarterly tax returns. The premium subsidy can last up to a maximum of nine months.

The ARRA requires employers to provide a special notice and election extension of 60 days to individuals who were involuntarily terminated on or after September 1, 2008 and who did not elect COBRA. The ARRA allows individuals to enroll in coverage under a plan that is different than the coverage in which the beneficiary was enrolled when they lost coverage. Employers with COBRA obligations should seek assistance to comply with these changes.

Family and Medical Leave Act ("FMLA")

In 2008, the FMLA was amended to grant leaves to relatives of military personnel. On November 17, 2008, the Department of Labor published final regulations implementing the 2008 amendments and revising existing FMLA regulations. The FMLA permits 26 weeks of military caregiver leave to family members to care for a covered service member with a serious illness or injury that was incurred in the line of duty. The FMLA permits up to 12 weeks of job leave for a "qualifying exigency" arising from an employee's spouse, child, or parent who is in the National Guard or Reserves being notified of an impending federal call or order to active duty in the armed forces in support of a contingency operation. The new FMLA regulations also make significant changes to the way employers administer FMLA leaves. Employers are required to maintain an FMLA policy.

Employee Free Choice Act ("EFCA")

The EFCA is a bill that was reintroduced to Congress on March 10, 2009 that would make significant changes to the National Labor Relations Act ("NLRA"). The NLRA currently contains a detailed procedure for a government administered election to determine whether employees want a union.

The EFCA would replace elections with a certification of a union based on signed authorization cards by a majority of the employees. If the parties cannot agree on a first contract within 120 days, the dispute is referred to arbitration. The EFCA requires the NLRB to seek a court injunction, to impose fines of up to $20,000.00 per violation, and to provide up to three times back pay in certain cases. Since the EFCA is potentially devastating for employees, it is recommended employers educate supervisors to understand the law.


Due to recent legislative and regulatory changes, it is critical for employers to educate themselves. The attorneys in the MIJB Labor and Employment Group stand ready to assist you to comply with the many laws, rules, and regulations that affect your business. For advice or assistance regarding Labor & Employment Law issues, please contact the author of this article, any member of the Labor & Employment Group, or any MacDonald Illig attorney with whom you have worked.