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Friday, June 26, 2009

EEOC Commission Approves ADAAA Regs


EEOC Commission Approves ADAAA Regulations

Reprint: Opelika-Auburn News, June 28, 2009

On June 17, 2009 the US Equal Employment Opportunity Commission (EEOC) adopted conforming regulations to changes made by the ADA Amendments Act (ADAAA) of 2008, which Act makes it easier for an individual seeking protection under the Americans with Disabilities Act (ADA) to establish that he or she has a disability. The three-member Commission (there are two vacancies) voted 2 to 1 to adopt these proposed regulations. The lone Commission dissenter is my former law partner Connie Barker. See Connie’s statement at http://www.eeoc.gov/abouteeoc/meetings/6-17-09/barker.html
As well stated by Connie, “These proposed changes depart in a fundamental way from the basic concept of the ADA – that disability is determined on the basis of an individualized assessment and not categorically.”

The ADA was signed into law in July 1990 and the EEOC is responsible for enforcing Title I of the ADA, which prohibits employment discrimination against individuals with disabilities. The Act requires employers to make reasonable accommodations to employees and job applicants with disabilities, including mental or physical impairments that substantially limit a major life activity, persons with a record of a disability, or who are regarded as disabled.

The ADAAA, which went into effect January 1, 2009, makes significant changes to the definition of the term “disability” by rejecting the holdings of several Supreme Court decisions and making it easier for an individual to establish that he or she has a disability. The ADAAA states that this new definition of disability is to be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA. The next step is review of the proposed Regulation by the Office of Management and Budget.

Christopher J. Kuczynski, Assistant Legal Counsel for the EEOC, has provided a detailed description of the proposed regulation and listed numerous examples to illustrate the application of this revised, and much expanded, definition of disability:
  • The first list includes many of the activities already recognized by the EEOC: walking, seeing, hearing, speaking, standing, lifting, thinking, concentrating, sleeping, etc;
  • It also includes three additional activities not previously recognized of bending, reading and communicating;
  • The second list of major life activities are “major bodily functions…include normal cell growth, functions of the immune system, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions,”
  • “Reaching, sitting, and interacting with others have also been included because the EEOC has previously recognized them as major life activities;”
  • Newly “added functions of the hemic, lymphatic, and musculoskeletal systems;” and
  • “Kidney disease, bladder function, cancer as it affects normal cell growth, diabetes as it affects functions the endocrine system (e.g., production of insulin), epilepsy as it affects neurological functions or functions of the brain; and HIV and AIDS as it affect functions of the immune system and reproductive functions.”

Practical Counsel: Brace yourself. The full text of Kuczynski’s written statements are posted on the EEOC’s website at: http://www.eeoc.gov/abouteeoc/meetings/6-17-09/kuczynski.html
If you are an employer you will need to breathe deeply into a paper bag first so you will not faint from the insanity of the EEOC’s interpretation of what Congress passed and Bush signed in the fall 2008. Handbook and Job Description upgrades are strongly encouraged.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com 

Monday, June 15, 2009

Drug-Free Lee County


Drug-Free Lee County -- Consider the Savings
Reprinted - Opelika Auburn News, June 14, 2009


On May 23, 2009 the National Center on Addiction and Substance Abuse (CASA) released its "Shoveling Up II: The Impact of Substance Abuse on Federal, State and Local Budgets," report reflecting that drug and alcohol abuse and addiction cost Alabama taxpayers nearly 1.4 billion dollars a year, or about 13% of its budget. Most of these costs are in budgets for prisons, welfare, courts and police, with only a small fraction for prevention and treatment. CASA called this the use of public funds "to shovel up the consequences and human wreckage of substance abuse and addiction." See www.casacolumbia.org for further details.

It is fair to speculate that 13% of the budgets of Lee County and the cities of Auburn, Opelika and Smith Station, and maybe even AU, are in some manner related to paying for the consequences of substance abuse and addiction. It is also a well-known statistic that 70% of all drug abusers are employed. Consider the cost savings if:
  • All governmental units in Lee County passed resolutions encouraging Lee County employers to institute a Alabama Drug Free Workplace Program, which entitles an employer to a 5% premium discount on their workers compensation, creates adverse consequences for substance abuse with treatment resources. The EASHRM Chapter has offered employer training on this topic with Dr. Garth Stauffer, a highly qualify Medical Review Officer, and policy development and implementation training could be offered throughout Lee County;
  • The Drug Court Program pioneered by Circuit Judge Walker (on which team I was privilege to serve and which bill passed in the last legislative session) may become operational in August 2009 starting to turn around the lives of first-time drug offenders who find themselves caught in the criminal justice system and are motivated to change;
  • Lee County Sheriff Jay Jones is able to drug test all arrested and detained in the Lee County Detention Center. Sherriff Jones is of the personal opinion that “65-75% of all Lee County arrests are in some manner drug involvement or related.” Therefore, referral for substance abuse counseling and treatment through the Substance Abuse Services Division of the Alabama Department of Mental Health just down the street could make a long term dent in Lee County crime;
  • AU Dean of Students Dr. Johnny Green and the AU Inter-Fraternity and Panhellenic Councils strongly encourage all fraternities and sororities to institute effective drug-free programs, with notice to parents for non-compliance; and
  • The drug-free schools programs currently being operated in Lee County receive even greater support with extensive parental education made available possibly utilizing the soon-to-be published book by CASA Founder and Chair Joseph A. Califano, Jr., How to Raise a Drug-Free Kid: The Straight Dope for Parents – a guide to help parents get their kids through the pre-teen, teen and college years drug free;
Practical Counsel: In my 15 years of practicing in the field of Drug Testing Law, written rules, accountability and compassion are the keys to any effective Drug Free Program. What amazing things could our communities do with 13% of budget?

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com 

Friday, June 5, 2009

DOT Rule on Direct Observation


DOT Rule on Direct Observation of Particular Drug Tests Upheld


Recently, the United States Court of Appeals for the District of Columbia Circuit upheld a hotly debated U.S. Department of Transportation (DOT) rule mandating direct observation of employees giving urine specimens on return-to-duty and follow-up drug tests. BNSF Railway Co. v. U.S. Dep’t of Transportation (D.C. Cir. May 15, 2009).

On August 25, 2008 the DOT revised its drug and alcohol testing regulations (49 CFR Part 40) to stem the adulteration and substitution of urine specimens of regulated employees covered under the FMCSA, FAA, PHMSA, FRA, FTA and Coast Guard. Under this new DOT rule, all return-to-duty and follow-up drug tests are to be collected under direct observation. (49 CFR Part 40.67 “As the observer, you must request the employee to raise his or her shirt, blouse, or dress/skirt, as appropriate, above the waist; and lower clothing and underpants to show you, by turning around, that they do not have a prosthetic device. After you have determined that the employee does not have such a device, you may permit the employee to return clothing to its proper position for observed urination”). This new DOT direct observation regulation was challenged by over 20 transportation unions who argued that the revised regulation violated the Fourth Amendment’s prohibition on unreasonable searches and seizures. The Court disagreed, upheld the DOT, and found as follows:

  1. DOT had marshaled voluminous evidence of the increased availability of products designed to defeat drug tests (see Google-“beat a drug test);
  2. DOT acted reasonably in limiting the direct observation rule to situations posing a high risk of cheating:
  3. Employees returning to work after drug treatment have a heightened incentive to cheat;
  4. DOT produced data that “the violation rate for return-to-duty and follow-up testing is two to four times higher than that of random testing;”
  5. The government’s interest in transportation safety is “compelling,” and given the number of creative cheating devices, “we have little difficulty concluding that direct observation furthers the government’s interest in effective drug testing.”
  6. Given the employees’ choice to work in a regulated industry, the employees’ prior positive test or refusal and the flood of cheating devices, the DOT “reasonably concluded that direct observation necessary to render these drug tests – needed to protect the traveling public from lethal hazards – effective.”
Practical Counsel: The DC Court’s prior stay of this regulation will remain in effect pending a request for rehearing. If upheld, the DOT will issue a notice in the Federal Register that the direct observation rule is effective. Alabama employers who implement an Alabama Drug Free Workplace Act Policy, which substantially follows the DOT testing protocol, can receive a 5% Workers Compensation premium discount.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com 

Thursday, June 4, 2009

Decatur requires E-verify


Decatur requires companies to verify workers legal June 1, 2009

Source - Associated Press

DECATUR - The Decatur City Council has unanimously approved a resolution requiring companies doing business with the city to verify that all employees are authorized to work in the United States.

Monday's decision does not impact existing service contracts, but requires all future ones to include language stating the employer used E-Verify or another acceptable procedure to verify its employees' work status.

City Attorney Herman Marks said companies are required to show officials how they verified their employees' legal status before obtaining a contract.

The city could cancel a contract if they find an employer hired an unauthorized worker.

[Below: Actual Resolution Adopted by City of Decatur, AL on June 1, 2009]

Resolution No. 09-141
The City Council of the City of Decatur, Alabama finds and determines that it is appropriate for the City to reconfirm its commitment to the hiring of only those individuals who are legally authorized to work in the United States of America;

The City Council finds and determines that it is appropriate to reaffirm its commitment to only contracting for service with entities that can document through E-Verify or other acceptable verification to the City that each individual, representative or employee of that entity is legally authorized to work in the United States of America;

THEREFORE, BE IT RESOLVED by the City Council of the City of Decatur, Alabama that The Personnel Board of the City of Decatur, Alabama is requested and authorized to continue to use Department of Homeland Security Procedures, as updated, or any other procedures such as E-Verifyy to determine and document that each person employed by the City is legally authorized to work in the United States of America; and

BE IT FURTHER RESOLVED that any bids, contracts, or other proposals issued by the City of Decatur involving the provision of services by any individual shall include language that documentation by the responding party shall be provided by E-Verify or other verification procedures acceptable to the City prior to execution by the City of any related agreement.

Adopted this 1st day of June 2009.

Wednesday, June 3, 2009

E-Verify Postponed

Federal Contractor E-Verify Requirement Postponed to September 8, 2009

On June 3, 2009 notice was sent out that the federal government has postponed from June 30 until September 8, 2009, implementation of the E-Verify requirement for federal contractors. This is the fourth delay since the final rule was issued.