BIA REPORT
Employment Law Update
State and federal developments of interest to New Hampshire employers
June 2002 issue:
By Andrea Johnstone and Anne Scheer*
Seniority Systems
On April 29, 2002, in its first case ruling on the "reasonability" of a requested accommodation under the Americans with Disabilities Act ("ADA"), a sharply divided United States Supreme Court held that an employer ordinarily will not be required to violate a bona-fide seniority system.
In Lewis Airways, Inc. v. Barnett, U.S. No. 00-1250, the Court ruled in this case that requiring an employer to breach a bona-fide seniority system is not "reasonable in the run of cases", unless the employee can show "special circumstances" to justify such a preference.
The Court noted that such special circumstances would include, but not be limited to, an employer that had previously made exceptions to its seniority system.
The seniority system in this case was not pursuant to a collective bargaining agreement. Rather, the seniority system at issue was a long-standing policy of the employer, but which the employer reserved the right to amend.
As a result, collectively bargained seniority agreements, which are not subject to unilateral employer amendment, should be even easier to defend against a request for "reasonable accommodation", but still may be subject to attack if exceptions to the seniority system have been made.
Notification of Family Leave
In another employment decision, on Tuesday, March 19, 2002, again a sharply divided United States Supreme Court issued a decision favorable to employers in the first case the Court has reviewed under the federal Family and Medical Leave Act (FMLA).
The Court in this case struck down a Department of Labor regulation, which provides that an employee's 12-week leave allotment under the FMLA does not start to run until the employer notifies the employee that the time off will be counted as FMLA leave.
Essentially, this case holds that an employee who does not receive FMLA notice as required by Department of Labor regulations will need to show that proper notice would have made a difference to their leave decision.
From a prevention perspective, employers should continue to give FMLA notices as required by Department of Labor Regulations. Such notices will prevent an employer from being dragged into after-the-fact speculation about whether proper FMLA notice would have made a difference to the employee taking the leave.
Ergonomics
In early April 2002, the Occupational Safety and Health Administration ("OSHA") announced rather than instituting new ergonomic rules, it will develop voluntary guidelines to reduce ergonomic injuries. OSHA has determined this to be the "best practical approach" to reducing ergonomic injuries immediately, rather than going through the time consuming process of rulemaking; OSHA also anticipates its guidelines will be more flexible than rules will be and will be able to take into better consideration specific industries and facilities. It is anticipated that the first set of industry guidelines will be developed for nursing homes.
It should be noted that OSHA takes the position that "even if there are no guidelines specific to your industry, as an employer you still have an obligation under the General Duty Clause, Section 5(a)(1) to keep your workplace free from recognized serious hazards, including ergonomic hazards . . . "
Members of the Armed Services Returning From Active Duty
Employers are beginning to have members of the U.S. Armed Forces returning from active duty in the Mid-East. It is important for such employers to remember that all returning military personnel separated from service under honorable conditions are entitled to the following:
- Reemployment
Reemploy as if they had remained continuously employed for the purposes of the position, as well as pay and benefits. This can mean a higher position if that is what would have happened but for the leave.
- Health Benefits
Reinstate health coverage with no waiting periods or exclusions (unless an injury or illness was incurred or aggravated during military service).
- Retirement Benefits
In general, qualified retirement plans must recognize military service for benefit accrual and vesting purposes. A returning employee is not treated as having a break in service.
- Vacation and Other Benefits
Reinstatement of all benefits the employee would have received if he or she had never left. As a result, life insurance, disability coverage, and cafeteria plan eligibility must be reinstated. Unused vacation must be restored and if vacation is based on seniority, the employer must count the military service for vacation purposes. However, the USERRA does not provide for accruing of vacation during military leave.
- Discharge
Upon reemployment after federal military service, an employer may not terminate such employee, except for cause (1) within one year after the date of reemployment if the military leave was more than 180 days, or (2) within 180 days of reemployment if the military leave was between 30 and 180 days.
- Exceptions to reemployment
Employers do not have to reemploy a returning service member if it is impossible or unreasonable under the circumstances. However, an employee's position is not unavailable simply because it is occupied by another employee. Finally, temporary employees (those hired for brief, nonrecurring periods) are not entitled to reinstatement rights.
- Employee's duty to return
In order to avail themselves of these rights, an employee returning from military service must report for reemployment as follows:
If service is less than 31 days, the individual generally must return to work on the first workday after release from military service. If service lasts between 31 and 180 days, the individual must normally reapply within 14 days after completing active service. If service is greater than 180 days, re-employment must take place within 90 days after the completion of service.
Copyright 2002. This article originally appeared in BIA Report, June 2002.
* Anne Scheer is admitted in New Hampshire.
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