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Top Employment Issues for States in 2009: Part 2 – FMLA, Discrimination, Minimum Wage, Safety

Last week, we discussed four employment law issues state legislatures will be grappling with in 2009 — layoff notification laws, immigration, the Americans with Disabilities Act (ADA) and it’s state equivalents, and unemployment benefits. This week, we’ll discuss four more – family and medical leave, workplace discrimination, minimum wage, and occupational safety. As with last week’s topics, some issues likely to be seen on state legislative agendas in 2009 will depend on the outcome of key federal issues.

Monthly update on employment law changes from all 50 states – Employers State Law Alert

Family and Medical Leave Act (FMLA)
Several states have implemented family and medical leave laws that are more expansive than the federal FMLA. These laws may apply to employers with fewer employees, contain an expanded definition of “family,” or may increase the permissible uses for the leave.

California, Washington, and, most recently, New Jersey, have also adopted paid family leave acts. Proponents of these laws argue that families need these protections now more than ever, while opponents fear the increased burdens they place on employers during a time of economic difficulty. While we will continue to see bills considered in 2009 to expand FMLA and paid leave programs, it is unclear what impact the economy will have on state legislatures’ actions in this area.

Regulations interpreting the federal military caregiver leave mandate that passed last year took effect on January 16 and expand FMLA coverage to allow employees in military families to take up to 26 workweeks of leave of absence to care for an immediate family member injured while serving in the military. Proposed legislation to conform to or expand these entitlements will be taken up in many states.

Audio Conference : FMLA Leave for Military Families: New Rules, New Calendar, New Challenges

Discrimination in the workplace
Although the federal government has not provided protection from job discrimination to individuals based on sexual orientation or gender identity, 20 states have passed such laws. We are likely to see more of these considered in 2009. On the federal level, the Employment Nondiscrimination Act of 2007 (ENDA), although passing the House for the first time, failed in Congress with President George W. Bush vowing to veto the law. The bill would make sexual orientation a protected class. President Barack Obama strongly supports the legislation and has vowed to get it passed in 2009.

The federal Genetic Information Nondiscrimination Act (GINA), which became law in 2008, protects employees from discrimination based on their genetic information. Thirty-four states also have some type of genetic nondiscrimination laws in place. However, these laws vary widely in scope and function. All of the existing state laws prohibit discrimination based on the results of genetic tests, though some also extend the protections to inherited characteristics, test results of family members, family history, and information about genetic testing, such as the receipt of genetic services.

Most states also restrict employer access to genetic information, with some states specifically prohibiting employers from requesting, requiring, and obtaining genetic information or genetic test results, or directly or indirectly performing or administering genetic tests. Some states may also may make exceptions to statutory requirements if, for example, genetic information may identify individuals who may be a safety risk in the workplace.

State implementation of the new federal law should provide uniformity among the states at least to the extent that they conform to the minimum protections. States without existing statutory protections will need to act in 2009 to conform to the federal law, while others will need to review existing laws to make sure they meet or exceed the federal protections.

HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including discrimination

Minimum wage
Under the Fair Minimum Wage Act of 2007, the minimum wage is set to be increased for a third time in 2009. Twenty-nine states already have a higher minimum wage, and many have also indexed increases to the rate of inflation. Those that do not have higher wages will be modifying their laws to meet the new federal standards.

All your required federal and state workplace posters, including minimum wage

Occupational safety and health
It appears that another battle over workplace ergonomics regulations is also brewing. In 2001 a regulation issued by Occupational Safety and Health Administration (OSHA) was overturned by a congressional joint resolution and signed by President Bush. This happened after substantial pressure from business lobbyists, who put a $100 million price tag on implementing the regulations. The regulations would have required businesses to establish programs to reduce musculoskeletal injuries such as back sprains and carpal tunnel syndrome.

With President Obama taking office and a strong democratic Congress, it is feared that the regulations will be proposed again. OSHA already has voluntary regulations in place for four industries.

Some states, specifically California, Washington, and Michigan, impatient with the progress of the federal rules, worked on their own regulations. So far only California has gone beyond the current federal requirements and adopted its own ergonomics regulations. Washington State had put ergonomics regulations in place, but rescinded them in 2003.

Michigan’s OSHA has been steadily developing its own proposed ergonomics rule since 2002, and the most recently released version would require employers to target repetitive-stress injuries on the job. The proposed Michigan rules would also require more employers to offer ergonomic training, to work to correct reported injuries, and would make it easier for employers to be punished for repeated worker injuries. Small employers, in particular, would be hit by the new training and reporting regulations, since larger companies often already have their own ergonomics programs and would be exempted under the draft rules. The Michigan rules would cover only general industry, specifically excluding construction, agriculture, mining, and domestic employment. It is unclear, at this time, whether other states will develop their own or wait and see what is in store on the federal level.

Employers are concerned not only with the potential cost of these types of state-specific ergonomics regulations, but also with the creation of a competitive disadvantage with businesses in those states that have not adopted their own regulations and that follow the current federal law. If the feds pass new regulations this year, then this argument will become moot.

Bottom line
2009 is sure to be one of dramatic change on the federal level. In fact, Congress has already passed the Lilly Ledbetter Fair Pay Act. For each new employment law action that occurs in Washington, we are sure to see a wave of legislative response in the statehouses. Employers will need to be quick on their feet and extraordinarily flexible in order to keep up with the details.

For the latest updates on state legislation related to employment law, subscribe to the Employers State Law Alert, a monthly newsletter and online searchable database.