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Employment Law Changes that Affect You

Van Cott employment attorney Mark A. Wagner cautions employers about recent, significant changes in both federal and Utah employment laws at during the past year, and advises them to examine their employment policies and practices to ensure they comply with these changes. These changes include the following:

Personal Information from Job Applicants. Utah law now prohibits any employer with 15 or more employees from collecting a date of birth, Social Security Number, or driver license number from an applicant until the applicant is offered a job or until the employer conducts a background check on the applicant. Once such information is collected, an employer may not use it for any purpose other than hiring, may not distribute it to third parties, and may not retain it for longer than two years if the applicant was not hired. Furthermore, each covered employer must now have a written policy on the retention, disposition, access to and confidentiality of such information, and must produce this policy to applicants on request.

Texting While Driving. It is now a crime in Utah to send e-mail or text messages while driving. Because many hand-held messaging devices are provided or subsidized by employers and are often used for work-related purposes, employers should consider implementing and enforcing a policy that prohibits employees from using such devices while driving. 

Guns in Employer Parking Areas. With certain exceptions, Utah law now forbids private employers from prohibiting any person from bringing a gun onto employer-provided or -designated parking areas so long as the person is legally permitted to transport, possess or store the gun, the gun is locked securely in a vehicle or a locked container attached to a vehicle, and the gun is not in plain view from outside the vehicle. 

Disabled Applicants and Employees. The Americans with Disabilities Act Amendments Act of 2008 effectively broadened the definition of "disability" under federal law. As a result, the main focus is no longer on whether an applicant or employee has a disability, but rather on whether discrimination occurred. Thus, covered employers should review job descriptions, qualification standards, and accommodation procedures, and should focus on performance and conduct. Employers should make all decisions on a case-by-case basis, and should focus more on engaging in the interactive process with individuals to determine whether a reasonable accommodation is available for any implicated physical or mental condition than on determining whether the condition qualifies as a "disability" under the law. Employers should take care to document their involvement in this process, and to document actions and decisions based on permissible business considerations.

Family and Medical Leave Act. The U.S. Department of Labor issued new and amended regulations under the federal Family and Medical Leave Act (FMLA), which became effective January 16, 2009. These revised regulations include new requirements for "Military Caregiver Leave" and "Qualifying Exigency Leave", and address such things as the effects of breaks in service on employee qualification, a new medical certification process, new employer and employee notices, and light duty work. Employers subject to the FMLA should revise their FMLA policies to comply with these revised regulations.

COBRA Premium Assistance. Under the COBRA premium assistance provisions of the federal economic stimulus law enacted in 2008, eligible employees who were involuntarily terminated between September 1, 2008 and December 31, 2009, and their qualified beneficiaries, are entitled to up to nine months of COBRA health insurance coverage subsidized at 65 percent of the coverage cost. A recent guidance document issued by the IRS provides details on these provisions in a question-and-answer format giving examples on such topics as involuntary termination, assistance-eligible individuals (including the effect of certain severance-pay arrangements which include continuation of health coverage), calculation of the premium reduction, coverage eligible for premium reduction, start and end of the premium reduction period, extended election period, and recapture of premium assistance. Employers are ultimately responsible for complying with these new provisions even if they contract with a third party administrator for benefits-related services.

Genetic Nondiscrimination. The federal Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers from, among other things, failing or refusing to hire, discharging, or otherwise discriminating against any person in employment because of genetic information about the person. GINA also prohibits employers from limiting, segregating or classifying a person in any way that deprives, or tends to deprive, the person of employment opportunities or that otherwise adversely affects the status of the person as an employee. GINA also forbids employers, with few exceptions, from requesting, requiring, or purchasing genetic information about an employee or an employee's family member. Genetic information that is possessed by an employer must be segregated from other information and treated as a confidential medical record.

New Form I-9. All U.S. employers must complete and retain a Form I-9 for each individual they hire for employment in the United States. Employers must now use a recently revised Form I-9 bearing a revision date of "08/07/09" on the lower right-hand corner of the form. No previous editions of the form can be used. This recently revised form, which expires on August 31, 2012, may be obtained on-line at http://www.uscis.gov/files/form/i-9.pdf.