Age Discrimination in Employment Act.

Often, claims under the ADEA are brought in response to reductions-in-force and similar attempts to right-size your business operations. Typically, the former employee claims that they have suffered “disparate treatment”. These are claims that the Employer has intentionally targeted the employee because of his or her age. The courts have more recently ruled that claims under the ADEA may also arise under the “disparate impact” theory. These are claims that the Employer has discriminated by enforcing policies which disproportionately affect employees of a particular age group. The Employer's challenged employment policies and practices may appear neutral on their face, but not when actually applied.

In the case of a disparate impact claim, the Employer may be able to show that the challenged policy or practice is based on a reasonable factor other than age. In arguing this defense, the employer has the burden of showing that such other reasonable factor is actually the basis for the disputed action or policy. So, it is important that employers carefully analyze and plan their policies, with an eye toward the impact such policies may have on older employees, and consider alternatives to reduce or eliminate potential adverse impact on this age group.

Family and Medical Leave Act.

The FMLA allows for an eligible employee to take up to twelve weeks of unpaid leave per year due to a serious health condition such that the employee is unable to perform the functions of his or her job or position – or because the employee is required to care for certain family members with a health condition. There have been a number of proposals in Congress to broaden coverage of the FMLA to allow an employee leave to care for a more expansive category of “family” such as domestic partners, parents-in-law, and siblings.

Congress did amend the FMLA in 2008 and 2009 to allow for leave to care for an injured service member. Such leave applies to military family members who have been injured in the line of duty, and includes certain injured veterans. The time period applicable to such leave is up to twenty-six weeks. Calculating the time for such leave, especially in conjunction with traditional family leave, can be a fairly complicated undertaking. Employers must be prepared and train management and human resources to recognize, verify, correctly calculate, and monitor such FMLA leave.

Americans with Disabilities Act.

One of the common issues arising for Employers under the ADA is the required good faith analysis of an employee request for an accommodation of a disability. An employer who fails to provide reasonable accommodation when appropriate may face liability under the ADA. A disability is generally found when an employee is substantially limited in a major life activity if he or she is significantly restricted as to the condition, manner or duration under which he or she can perform that activity, when compared to the average person. Again, the courts' willingness to find a disability seems to expand over time, requiring employers to keep current on these issues.

Employers must establish procedures to recognize employee requests for accommodation under the ADA. Usually, the employee does not need to use any magic words, but need only inform the employer of disability situation sufficient to put the employer on notice that the employee is requesting reasonable accommodation. A claim under the ADA for a failure to reasonably accommodate a disability will not arise if the employee fails to inform the employer that an accommodation is needed. Recent case law suggests that the duty to accommodate may include considering limitations on an employee's work commute. The Ninth Circuit Court of Appeals considered a case involving night vision impairment as a disability potentially requiring an accommodation in the employee's scheduled shift, so long as such accommodation did not create an undue hardship for the company.

Conclusion.

Proper advance planning and training will help your business to navigate the pitfalls in this changing area of the law. The business attorneys at Gibson Ferrin are available for consultation on these and all of your employment law issues. For an additional reference, please see Scott Gibson's e-book “Ten Fatal Mistakes Business Owners Make (And How to Avoid Them)” on our publications page.