SLF LABOR AND EMPLOYMENT ALERT December 2009

EEOC Issues Proposed Regulations and Interpretive Guidance under the Americans with Disabilities Amendments Act of 2008

On September 23, 2009, the Equal Employment Opportunity Commission (EEOC) published a Notice of Proposed Rulemaking (NPRM) addressing regulations implementing the ADA Amendments Act of 2008 (ADAAA). The ADAAA, which became effective on January 1, 2009, overturns a series of U.S. Supreme Court cases that narrowed the scope of protections under the ADA. The ADAAA considerably broadens the scope of “major life activity,” “substantially limited,” and “regarded as.”  Importantly, under the ADAAA mitigating measures are not considered when determining whether an individual’s condition meets the definition of “disability.”  Likewise, the definition of “major life activity” under the ADAAA is significantly expanded.

Congress directed the EEOC to revise its regulations in efforts “to reinstate a broad scope of protection” under the ADA and to provide employers with guidelines on how to comply with the ADAAA. The recent NPRM published by the EEOC reflects significant and broad expansions of employee protections under the ADAAA. The EEOC’s NPRM reiterates that regulations under the ADAAA are to be construed broadly and to the maximum extent permitted by the ADA.

The NPRM outlines a non-exhaustive list of “impairments” that will routinely qualify as a “disability” under the ADA. These qualifying impairments include deafness, blindness, intellectual disability, partially or completely missing limbs, mobility impairments requiring the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia. In addition, the NPRM provides a list of impairments that may be substantially limiting for some individuals, but not all. This list includes asthma, back and leg impairments, and learning disabilities.

Notably, the NPRM adds sitting, reaching, and interacting with others to the already extensive list of “major life activities” under the ADA. One of the most significant changes under the ADAAA is including major bodily functions as a major life activity. The ADAAA defines major bodily functions to include normal cell growth, neurological brain functions, functions of the immune system, digestive, bowel, bladder, endocrine, respiratory, circulatory, and reproductive functions. The NPRM adds to this list hemic, lymphatic, musculoskeletal, special sense organs and skin, genitourinary, and cardiovascular functions.

Consistent with expanding employee protections under the ADA, the ADAAA and NPRM both specify that episodic impairments and impairments in remission meet the definition of disability if these impairments when active would substantiality limit a major life activity.  Examples of these inactive impairments provided in the NPRM include epilepsy, hypertension, multiple sclerosis, asthma, diabetes, major depression, bipolar disorder, and schizophrenia.

Although it remains to be seen which of the EEOC suggested revisions will be implemented in the final regulations, undoubtedly, the final regulations will comply with Congress’ intent and significantly broaden employee protections under the ADA. Future ADA litigation will no longer focus on technical arguments that a plaintiff is not disabled; rather the focus will be shifted to the employer’s actions toward a plaintiff. An EEOC Question and Answer Guide on the NPRM for the ADAA can be found at: http://www.eeoc.gov/policy/docs/qanda_adaaa_nprm.html.

United States Supreme Court to Evaluate Privacy Rights of Employee Using City Issued Pager

The United States Supreme Court recently agreed to hear a case involving a municipal employee’s right to privacy while using an alpha-numeric pager issued by his employer.  A police SWAT member exceeded his data allotment on his City issued pager.  An investigation was conducted for the purpose of determining if he impermissibly used the pager for personal purposes.  During the investigation, it was revealed that the officer engaged in sexually explicit messaging with a non-employee.  The officer and non-employee sued the City alleging a violation of their 4th Amendment right to be free from unlawful search.

Among the issues to be decided are whether government employees and non-employees have a reasonable expectation of privacy in text messages transmitted on an employer issued pager.  Although the Court will review this narrow issue, it may have broader application to include mobile phone records, electronic mail and any other form of technology used by a government employee for incidental personal business.

In Florida, almost all records maintained by a governmental entity, including text messages, mobile phone records and electronic mail, are public record, and are by definition, public.  However, the Supreme Court’s resolution of this issue may impact retention and investigatory policies and practices when employees use government technology to engage in private communications.  The breadth and scope of the government employees’ right to privacy, if it even exists, should be addressed by the Court.  We will keep you updated as the case progresses.

EEOC Investigative Findings Excluded from Civil Action

In Ford v. BT Foods, Inc., d/b/a Wendy’s Coral Springs, the 4th DCA recently held that the admission of a “no reasonable cause” EEOC investigative finding was erroneous.  The Court determined that allowing the presentation of the finding to the jury in the civil trial caused substantial prejudice when compared to its evidentiary value.  Although the Court refused to rule that these types of findings are automatically inadmissible, this ruling opens the door to challenge administrative findings in future cases because it viewed both “reasonable cause” and no “reasonable cause findings” as creating a substantial effect on the jury’s ultimate assessment of the case.

In excluding the findings, the court held, “A jury may find it hard, if not impossible to independently evaluate the evidence presented by the parties after being informed that the EEOC has already investigated the claim and determined that reasonable cause does or does not exist to believe that unlawful discrimination has occurred.”  Although this opinion addressed discrimination cases, the rationale is also relevant to Whistleblower retaliation allegations.

Employers should use this argument anytime a Plaintiff seeks to introduce an adverse investigative finding of the EEOC, Florida Commission on Human Relations, or similar agency.  The full text of the case may be found at http://www.4dca.org/opinions/Dec%202009/12-02-09/4D07-5065.op.pdf.

COBRA Subsidy Extended Through February 28, 2010

On December 19, 2009, President Obama signed the Department of Defense Appropriations Action, 2010 (H.R. 3326-64)(“2010 DOD Act”), which extends the COBRA subsidy benefits made available through the American Recovery and Reinvestment Act of 2009 (“ARRA”).  The ARRA contained numerous provisions including COBRA continuation coverage benefits for displaced workers.  Pursuant to the 2010 DOD Act, the COBRA subsidy benefits provided for in the ARRA have been extended through February 28, 2010.  The COBRA subsidy benefits have also been extended from 9 months to 15 months.

Although 2010 DOD Act contains several amendments to ARRA, employers should be aware of the various notice requirements.  The U.S. Department of Labor released a Fact Sheet (http://www.dol.gov/ebsa/newsroom/fscobrapremiumreduction.html) on December 23, 2009, explaining the various notice requirements as follows:

• Plan administrators must provide information about the premium reduction to all individuals who have COBRA qualifying events from September 1, 2008 through February 28, 2010.
• Plan administrators must also provide notice about the changes made to the premium reduction provisions of ARRA by the 2010 DOD Act to individuals who have already been provided a COBRA election notice (unless the election notice included the updated premium reduction information).
• Individuals who are “assistance eligible individuals” must be provided this notice by February 17, 2010;
• Individuals who experience a termination of employment on or after October 31, 2009 and lose health coverage must be provided this notice within the normal timeframes for providing continuation coverage notices; and
• Individuals who are in a “transition period” (a period that begins immediately after the end of the nine months of premium reduction in effect under ARRA before the amendments made by the 2010 DOD Act, as long as those nine months ended before December 19, 2009 and the premium reduction provisions of the 2010 DOD Act would apply due to the extension from nine to 15 months) must be provided this notice within 60 days of the first day of the transition period.

Information related to 2010 DOD Act, including all changes to COBRA subsidy benefits, is available at the following link: http://www.dol.gov/ebsa/cobra.html.

Teacher Has Right to Counsel During Office of Professional Standards Investigatory Interview

On December 2, 2009, the Florida Second District Court of Appeal issued an opinion holding that Todd Raven (teacher) had a right to counsel during an Office of Professional Standards (“OPS”) investigatory interview, because the Manatee County School District delegated its investigatory authority to OPS.  Raven v. Manatee County School Board, No. 2D08-1533 (Fla. 4th DCA 2009).  In Raven, the Manatee County School District implemented a policy providing OPS with the authority to conduct investigations into teacher misconduct.  Raven was the subject of an investigation related to allegations that he possibly engaged in inappropriate conduct with a student.  During the course of the OPS investigation, Raven refused to attend an investigatory interview without the presence of legal counsel.  As a result of his decision, the District terminated his employment.  The 2DCA ultimately agreed with the recommended order entered by the Administrative Law Judge holding that pursuant to Section 120.62(2), Florida Statutes, Raven was entitled to counsel during the OPS investigatory interview.

The full text of the opinion is available at the following link: http://www.2dca.org/opinions/Opinion_Pages/Opinion_Page_2009/December/December%2002,%202009/2D08-1533.pdf.

Happy New Year

The lawyers and staff of Sniffen & Spellman, P.A. wish you and yours a prosperous 2010.

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