BIA REPORT
Employment Law Update
State and federal developments of interest to New Hampshire employers
February 2002 issue:
By Andrea Johnstone, Anne Scheer, and Terry Shumaker*
Drawing the Line on Definition of Disability
On January 8, 2002, the United States Supreme Court unanimously ruled that the Americans with Disabilities Act ("ADA") only applies to an individual who has a physical or mental impairment, which "prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives", and which is "permanent or long-term."
The plaintiff in this case was an assembly line worker who, as a result of her work, developed carpal tunnel syndrome, myotendentious, and thoracic outlet compression. While not disputing that these conditions resulted in physical impairments, the defendent, Toyota, did dispute whether such impairments substantially limited the plaintiff in the major life activity of "performing manual tasks."
The Supreme Court held that when analyzing whether an individual is substantially limited in the major life activity of performing manual tasks, activities, such as household chores, bathing, and brushing one's teeth are the type of manual tasks that are of central importance to people's daily lives, not tasks associated with a specific job. The Court ruled that only if an individual is severely restricted in activities of central importance to most people's daily lives, will a "manual task disability" be established as a matter of law.
This opinion is clearly meant to restrict the seemingly ever expanding amount of conditions that may come within the protection of the ADA. However, it does not set a bright-line threshold which would eliminate cases. Rather, the opinion specifically states that in every case an "individualized assessment of the effect" of any impairment must be made to determine whether a person comes within the ADA. As a result, it is unlikely that this ruling will significantly decrease the amount of cases filed in this area. Furthermore, the Court stated that it still is not deciding whether "working" is a major life activity. On this issue the Court noted that, to date, it has only said that "even assuming that working is a major life activity, a claimant would be required to show an inability to work in a broad range of jobs, rather than a specific job."
It can be expected that there will continue to be litigation over the issue of whether working is a major life activity, as well as whether a given individual's physical or mental impairment prevents or severely limits the individual from tasks of central importance to most people's daily lives as well as what are such tasks.
Department of Labor Priorities
In the December 3, 2001, Federal Register, the U.S. Department of Labor ("DOL") published its annual regulatory agenda. This is the first annual agenda of the DOL reflecting the priorities of the Bush Administration. The agenda designates 17 ongoing matters as priorities, including:
- Revising the Fair Labor Standards Act's ("FLSA") exemption for executive, administrative and professional employees;
- Improving protections for employees who wear respirators on the job;
- A number of new Occupational Safety and Health Administration ("OSHA") Safety Regulations;
- Notification requirements for continued group health plan coverage;
- Changes to the labor certification process used by foreign workers seeking permanent employment in the United States;
- Revised regulatory criteria applicable to child labor; and
- New rules for federal contractors on the posting of notices informing employees of their right to pay agency fees in lieu of union dues.
Labor Secretary Elaine L. Chao, stated with regard to this agenda, it is meant to set "a new course" for DOL that emphasizes "prevention and compliance assistance, relying on the use of common-sense standards of safety and fairness to protect workers before they are harmed physically or economically." The plan notes that "education and encouragement of employers will help workers far more than enforcement alone, since no enforcement process can possibly identify every violation of the law, and fines and penalties can never fully redress losses of life, health and economic well-being."
Changes in OSHA Recordkeeping Laws
On January 2, 2002, new recordkeeping rules for the Occupational Safety and Health Administration ("OSHA") were enacted. 29 CFR Parts 1904 and 1952. These rules change the recordkeeping requirements of private employers, exempt certain employers previously covered, such as offices of physicians and dentists; and cover previously exempt industries, such as automobile dealers and residential care facilities. The new rules also provide several updated forms: OSHA 300 - Log, OSHA 300A - Summary Sheet; OSHA 301 - Incident Report.
Highlights of the new rules include:
- Elimination of different criteria for work-related injuries and work-related illnesses;
- Classification of aggravation of a pre-existing work condition as "work-related" only if the aggravation is significant;
- Revised recording criteria, privacy protections, centralized recordkeeping, and the necessity to record needlesticks and "sharps" injuries, as well as tuberculosis.
Copyright 2002. This article originally appeared in BIA Update, February 2002.
* Anne Scheer is admitted in New Hampshire.
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