McAfee & Taft labor and employment attorney Sam Fulkerson was featured in The Oklahoman discussing major upcoming changes in workplace law over the next couple of years.
These major changes include the continued expansion of workplace leave laws and the impact of the Americans with Disabilities Act (ADA) Amendments Act, which became effective in January. "Regarding leave laws, we already have two new Family and Medical Leave Act (FMLA) amendments that employers should be prepared to apply: Qualifying Exigency Leave and Military Caregiver Leave," said Fulkerson. "These laws apply to the impact military service has on employment."
Fulkerson stated that although these may have relatively limited application, "employers better get them right – there will be no sympathy for those who mess up."
Fulkerson also shared that there may be more leave-related bills pending, including bills requiring sick paid leave, paid vacation, 12 weeks of paid FMLA leave, expansion of FMLA leave to part-time employees, and expansion of FMLA leave beyond immediate family members to include same-sex partners.
Fulkerson said that the ADA amendments lower the bar for an employee to qualify as a qualified person with a disability, and that the effect of medical treatments can no longer be considered in determining whether someone is disabled.
Fulkerson commented that the Employee Non-Discrimination Act (ENDA), family responsibilities discrimination (FRD), and 'association discrimination' are major changes on the mid-term horizon. "ENDA will prohibit discrimination on the basis of sexual orientation or gender identity, and it should pass this year or in 2011," said Fulkerson.
"FRD already is being recognized by courts under gender and disability laws. It bars discrimination on the basis of family responsibilities, such as the employer who doesn’t want to hire or promote a female because she has kids or has expressed an intention to have kids, because she will be conflicted between family care and work. I think we’ll see formal legislation on this in the next two years," said Fulkerson.
He continued, stating "'Association discrimination' already is recognized under the ADA, which prohibits discrimination against an employee "in association” with a disabled person, such as a disabled spouse or child who will incur significant medical expenses under an employer health plan. This will be expanded to protect employees in association with members of any protected group, for example employees in interracial relationships, perhaps even employees who do volunteer work with HIV/AIDS patients."
As for understanding the "big picture" for these changes, Fulkerson said "They are all part of the continuing evolution in workplace rights, or restrictions, depending on which side you’re on. Of course, the laws apply to the employers themselves, even though it will be an expense and burden to implement them.
First-generation workplace laws prohibited the most obvious forms of historical discrimination, beginning with race. The next generation refined those laws to apply to various types of real-world workplace scenarios, for example, to address what makes for an unlawful change in workplace conditions.
"This next generation of laws will again add new legally-protected statuses (for example, status based on sexual orientation) and will try to impose 'work-life balance' by expanding legally protected types of leave so that employees may take care of their personal lives without risking their jobs."
You can read the entire article here.