Richard D. Alaniz

Amid a faltering economy, and with primaries for the 2008 elections now in process, the political landscape grows more uncertain for businesses and employers. In the coming months, four issues currently under consideration in Congress loom particularly large because of their potential impact on companies: the Employment Non-Discrimination Act (ENDA); the proposed Forewarn Act of 2007; a potential revamping of the Americans with Disabilities Act (ADA) through the ADA Restoration Act; and possible changes to the Family and Medical Leave Act (FMLA).

Companies in the HVACR industry should have all of these issues on their radar screens in the coming months.

1. The Employment Non-Discrimination Act
ENDA would prohibit discrimination against employees based on sexual orientation, adding homosexuality to the list of federally protected classes. Numerous states already have laws on the books protecting sexual orientation. The version of the federal bill that passed the House on Nov. 7, 2007, does not include protection based on gender identity, or those who are transgendered - that exclusion was hotly contested in Congress and in the gay and lesbian community.

Sen. Edward Kennedy (D-Mass.) has said he would introduce an indentical bill in the Senate. It is not clear if the Senate would vote on the bill in 2008, or wait until the election is over to consider it.

“Although the bill is narrower than many of us had hoped, the House action is still a main step in the long journey toward full civil rights for every American,” said Kennedy in a press release.

It is important to note that the bill would cover both employers and labor organizations, and also cover both actual andperceivedsexual orientations.

2. The Forewarn Act
The Forewarn Act is another bill with potentially big implications for HVACR companies. The bill is a proposed update to the Worker Adjustment and Retraining Notification Act (WARN), which requires most large employers to provide 60-day notice in advance of “mass layoffs.”

The Forewarn Act would change the definition of a mass layoff from 50 employees to 25 and reduce the employer size covered under the WARN Act from 100 to 50 employees. The legislation would also lengthen the notification period from 60 to 90 calendar days and require employers to provide written notification to the U.S. Department of Labor.

Forewarn would also give the U.S Department of Labor and state attorneys general the authority to enforce the WARN Act and would increase penalties to double back pay, plus benefits.

The bill is currently in committee in the Senate, and a version has been introduced into the House.

3. ADA Restoration Act
Employers should also pay attention to potential revisions to the Americans with Disabilities Act. Under the current proposed revisions, several key definitions in the act would change: the definition of “disability” would be broadened to eliminate the “substantial limitation” on a “major life activity” requirement; it would define the terms used in the definition of disability; and it would add a rule of construction to the definition of disability, which prohibits courts from considering whether a person uses mitigating measures or considering whether the manifestations of an impairment are “episodic, in remission, or latent” when determining if a person has an impairment.

The bill would also prohibit discrimination “on the basis of disability.” The bill does clarify that employers would remain free to argue a particular applicant or employee does not have the requisite qualifications for the job and is therefore not a “qualified individual with a disability.”

According to the U.S. Chamber of Commerce, current proposed revisions would cover virtually the entire working population of the United States, and such a radical reworking of the ADA is not justified. “The Chamber will actively oppose these radical changes because they would not address the needs of those who are deserving of ADA’s protections but, instead, divert significant compliance and enforcement resources to ‘gotcha’ lawsuits that already overwhelm enforcement agencies and the courts,” said U.S. Chamber Executive Vice President of Government Affairs Bruce Josten.

House subcommittee hearings were held on the bill in October.

4. The Family and Medical Leave Act
In 2007, several bills that would expand the FMLA floated around the House and the Senate. That includes a version from Sen. Chris Dodd (D-Conn.), author of the original FMLA, which would expand the act to require paid leave - rather than the current unpaid leave - that employees are currently entitled to for the birth or adoption of a child, and in order to care for themselves, children, or an immediate family member.

As different bills have come under consideration, the Department of Labor looked at the implications and limitations of the current act. According to a June 2007 report by the Department called “Family and Medical Leave Act Regulations: A Report on the Department of Labor’s Request for Information,” the prevalence of unscheduled intermittent leave already represents the single most serious area of friction between employers and workers.

“The 15,000 comments from workers, employers, and others attest to the importance of family and medical leave for America’s caregiving workforce,” said Victoria A. Lipnic, assistant secretary of labor for the DOL’s Employment Standards Administration. “While family and medical leave is widely supported, we also heard from many workers and employers that there are challenges with the way certain aspects are being administered.”

In the current political climate, the passage of any of these bills could have a major impact on an employer’s relationship with and responsibilities toward employees. Employers should be carefully monitoring the progress of these proposals in Congress and consulting with legal counsel when necessary to be sure they understand the implications of the proposed legislation, a good portion of which will likely become law with the probable changes in administration.

Publication date:01/21/2008