CAPITOL — Phillip Steck thought he had a clear-cut disability discrimination case on his hands. The Albany employment attorney was contemplating representing a Troy woman who had lost her sewing job at a Rensselaer County manufacturer because her carpal tunnel syndrome made her miss too many days of work.
Then the U.S. Supreme Court in 2002 dashed Steck’s plans to pursue a lawsuit alleging Americans with Disabilities Act violations. The court ruled that a Toyota Motor Manufacturing assembly line worker’s carpal tunnel syndrome did not qualify as a disability under the ADA.
32-day legislative triple play
Three federal and state laws that will have an impact on New York businesses in early 2009:
Jan. 1 — Americans with Disabilities Act Amendment Act: Broadens the 1990 law’s definition of “disability,” potentially exposing businesses to more ADA discrimination lawsuits.
Jan. 16 — Military Caregivers Leave: Requires businesses to provide 26 weeks of unpaid leave to employees so they can care for immediate family members wounded while serving in the military.
Feb. 1 — New York State Workers Adjustment and Retraining Notification Act: Requires business with at least 50 employees to provide 90 days’ notice before laying off at least 25 workers. The law took effect Aug. 5, but the notification mandate was delayed.
“I thought we had a good case and then the decision came down and we didn’t. . . . What you ended up with was an extremely limited definition of what disability is,” Steck said.
But on Jan. 1, Steck expects cases similar to the Troy woman’s to look good again, as an ADA amendment act takes affect. The new version of the law will reverse several Supreme Court rulings that narrowed the definition of “disability.”
The amendment brings the ADA’s definition of “disability” more in line with the New York Human Rights Law’s broader definition. But many lawyers have not favored disability discrimination suits in state courts because those cases do not award plaintiffs punitive damages and attorney fees. With ADA cases offering those awards, area legal experts are anticipating an uptick in disability discrimination suits in federal courts.
“Given the fact there’s a new law and given the fact it’s going to get a lot of publicity, we’re probably going to see an increase in claims,” said John Bagyi, an Albany employer attorney.
Raising hurdles
At a time when state and federal lawmakers are clamoring to save the economy, the ADA amendment is one of several laws that take effect early next year and raise hurdles for New York businesses as they struggle through a recession.
Three significant labor-related mandates are slated to take effect during the first 32 days of 2009. They include the ADA amendment and a mandate that will make businesses look further into the future before formally declaring mass layoffs. There is also a law that requires employers to provide workers with up to 26 weeks of unpaid leaves of absence so they can care for wounded family members in the military.
“It’s a lot of change to have to be adjusting to in quick succession,” Bagyi said.
Steck said the ADA amendment is less of a new law than Congress’ attempt to restore its intentions for the original act. On Jan. 1, the amendment will render moot the Supreme Court’s 2002 ruling for Toyota Motor Manufacturing v. Williams, which spoiled Steck’s plans to represent the Troy woman.
In that case — brought forth by a Toyota worker suffering from carpal tunnel in Georgetown, Ky. — the nation’s top court ruled that the diagnosis of an impairment does not automatically qualify people as disabled under the ADA. Instead, judges said the law targets impairments that severely restrict activities “of central importance to most people’s daily lives.”
The ADA amendment, which Congress passed in September, includes the “operation of a major bodily function” within the meaning of “major life activity.” That change could apply to workers with hands affect by carpal tunnel impingement.
Another important Supreme Court case is E. Sutton v. United Airlines, in which twin sisters with severe nearsightedness applied for commercial airline pilot jobs at United. Although their vision was improved through the use of eyeglasses, the airline refused to hire the sisters because they failed to meet a minimum vision requirement. That denial prompted an ADA discrimination suit.
In the Sutton case, the Supreme Court in 1999 ruled that people are not protected under the ADA if their impairment can be corrected or mitigated through the use of eyeglasses, prosthetics, medication or other devices. But the amended law eliminates the court’s “functional approach to determining disability” that takes into account the amelioration effects of medication and mitigating devices.
Military caregivers
About two weeks after the ADA amendment takes effect, employers will have to accede to more worker accommodations, as a military caregiver leave mandate takes effect Jan. 16.
Congress last January passed the National Defense Provision Act, which included a provision that allows employees in military families to take up to 26 work weeks of leave of absence to care for an immediate family member who sustained a serious illness or injury while serving in the U.S. military.
The provision will force employers to provide more than twice as much unpaid leave time than the standard 12-week period mandated by the Family and Medical Leave Act, which took effect in 1993. The Business Council of New York supported it in light of the sacrifices made by U.S. military service men and women in Iraq and Afghanistan, said Michael Moran, a spokesman for the Albany trade group.
“It’s a burden, but it’s one we’re willing to make. We supported the change,” he said.
However, the Support Services Alliance, an Oneida-based trade group that represents 13,000 small businesses statewide, was less supportive of the provision.
“It’s another well-intended piece of legislation, but small businesses are running on lean staffs, and they don’t have the resources to fill in staff,” said SSA Vice President of Membership Services Christopher Koetzle.
Two weeks after the military caregiver leave provision takes effect, New York businesses will have to start providing 90 days of advanced notice prior to executing plant closures or mass layoffs under the state’s new Workers Adjustment and Retraining Notification Act.
Although New York’s WARN law took effect in August, businesses do not have to provide the state with the 90-day WARN notices until Feb. 1. Businesses planning large cuts before that date are “strongly encouraged” to issue those notices, the state Department of Labor’s Web site states.
The state’s WARN system is further-reaching than the two-decade-old federal system, which requires a 60-day notice before closures or layoffs. The state system applies to businesses that employ at least 50 and that are laying off at least 25 workers, making an estimated 13,000 more small businesses statewide subject to WARN mandates.
The federal program applies to businesses that employ at least 100 and are laying off 50 or more workers. Violators of the state WARN system can also be subject to paying civil penalties and back wages.
New York’s business lobby opposed the state WARN system, saying it will force companies to jump the gun on layoff decisions and pose undue burdens on small businesses. Schenectady County Legislature Minority Leader Robert Farley earlier this month said the new WARN law influenced the Milwaukee-based Super Steel Products’ announcement to close its Glenville plant in April and layoff 175.
“These types of mandated burdens make it more difficult to make the difficult decisions without the right amount of information,” Koetzle said.
New York lobby
New York’s business lobby is now gearing up to block a flood of legislative proposals in Albany they say could further hamper the state’s economic recovery.
Just last week, Gov. David Paterson presented a $121.1 state budget that calls for higher taxes on everything from soda to luxury items. Paterson is also proposing to retroactively apply new criteria to the Empire Zone program — a move that could strip an estimated 4,900 businesses of their tax benefits under the job creation initiative.
Beyond the perennial budget battles, the business lobby is also keeping on its radar efforts by the Working Families Party to raise the state’s minimum wage and institute a paid family leave initiative.
With that labor-based grass-roots group playing an important role in flipping majority control of the state Senate to Democrats in November’s elections, the business lobby frets that the Working Family Party holds an “IOU” from the Legislature, local business experts said.
Working Families Party Executive Director Dan Cantor said he’s optimistic his group will score more legislative changes during the Legislature’s 2009 session, especially because “Democrats tend to be friendly” to workers’ issues. He rebuffed claims that mandates, such as a minimum wage increase, hamper business, saying, “When people have more purchasing power, then that’s a good thing and businesses know that.”
“Much of our game here is playing defense,” said Michael Elmendorf, the National Federation of Independent Businesses’ state director in Albany.
Meanwhile, the business lobby hopes the nation’s recession will cause the Legislature to pause before passing bills that could slow economic recovery. Jim Rogers, president and chief executive officer of the Food Health Alliance of New York, said lawmakers will have to be careful “not to drive business out of New York state” while also serving their constituents.
“There’s a fine line that the Democrats will find [themselves] walking,” said Rogers, whose Albany trade group represents grocery stores.
July 4, 2009
