The Family and Medical Leave Act (FMLA): Effective January 2009, amendments to FMLA provided new additional military leave entitlements and updated the regulations under the 15-year old act. The Dept. of Labor published its 700-page final rule in November 2008. A partial list of the amendments include clarifications of a serious health condition, light duty, intermittent leave and gaps in service as well as broadened light duty requirements. This translates to increased requirements on employers to recognize additional FMLA qualifying events, such as military disability and employees caring for individuals injured in the line of duty. New forms required during the FMLA process are substantially different than the WH-380 and WH-381 forms that were used before January 2009, and are specifically tailored for the new qualifying events. Americans with Disabilities Act Amendment Act (ADAAA): Signed into law in September 2008 and effective January 2009, ADAAA changed disability law nationwide. While most of us know that California has the most cumbersome ADA regulations in the country, the 2008 Amendment has surpassed even the California standards and moved the entire United States beyond the requirements once isolated to California. The new law redefines the term "disability" to include individuals with far less severe impairments than were included under the "old" law. This new law lowers the bar for individuals to qualify as disabled and now includes "activities that are of central importance to most people's everyday life activities," including: o Walking, standing, lifting, communicating, working, etc. o Bodily functions–normal cell growth, digestive, bowel, respiratory, etc. o Individuals may now be "regarded as" disabled merely by showing they have been subjected to any adverse action because of an actual or perceived physical or mental impairment, even if it doesn't limit a major life activity, as was previously required o Those individuals who are able to control their impairment by medication or medical devices may now qualify for protection as "disabled." These changes mean that employers and human resource professionals must recognize situations that could qualify. Situations that previously were not disabilities because of corrections (eyesight, epilepsy, migraines) will now all qualify as disabilities and require the employer to go through the interactive process with that employee. Management training will also need to occur to help managers recognize potential ADAAA qualifying situations so that employees can be worked with quickly to identify any reasonable accommodations that could exist. Lily Ledbetter Fair Pay Act of 2009: The Lilly Ledbetter Fair Pay Act of 2009 was enacted in January 2009, but is retroactive back to May 28, 2007. This law amends the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act and the Rehabilitation Act, to clarify that an "unlawful employment practice" occurs when: o A discriminatory compensation decision or other practice is adopted o An individual becomes subject to the decision or practice, or o An individual is affected by application of the decision or practice, including each time compensation is paid. The Ledbetter Act overrides last year's Supreme Court ruling (Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 [2007]) that declared plaintiffs had to file wage claims within 180 days of a company's decision to pay a worker less than a counterpart doing the same work. The "enhanced" statute of limitations for pay discrimination claims means that employers could be scrutinized–and made liable for–acts and decisions made years earlier, when the company may have been run by employees and executives who no
longer work for the company. In addition, retirees could bring suits alleging pay-related discrimination that occurred decades ago if they are presently receiving benefits, such as pensions or health care, as the amount they receive is potentially lower because of past discrimination. The grim reality is that employers are being held to greater responsibility to protect employees and are subject to greater regulation while employees enjoy lower thresholds for filing claims against their employers. Growing need for EPLI
While employees enjoy the resources and help of the EEOC, there are resources for employers in the form of EPLI. Agents should educate their clients that their employment exposure is not one thing: it is many things, each with their own requirements, protections, fines and penalties. Old laws change and even more new employment laws appear. Employment laws range from the federal level all the way down to the city government level. It is up to each employer to be aware of their obligations under each of these laws. More specifically, employers need a broad insurance policy that covers a complex variety of discrimination, harassment and tort causes of action in addition to punitive and exemplary damages and liquidated damages. Every new employment law has been written with unique forms of language, and even damage calculations may differ from law to law. It is important for agents to understand that each EPL insurance policy may be different in terms of what types of employment actions and damages may be covered. Not every insurance policy has set out to provide broad forms of coverage. Narrower forms may allow more price-competitive quotes and capture the attention of some agents and potential insureds, but will disappoint during the time of a claim. Agents also should know that there are carriers that include free risk management services, which can be of great help to insureds, bringing very cost effective (or free) policies and practices revision help as well as help during actual unfolding employee disciplinary events, layoffs and other day-to-day employee management issues.

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