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July 26, 2015 marked the twenty-fifth anniversary of The Americans with Disabilities Act (“ADA”), which created comprehensive federal protections for individuals with disabilities in all areas of public life, including the workplace, providing equal access to the same employment opportunities and benefits available to persons without disabilities. In signing the law into effect twenty-five years ago, President George H.W. Bush noted:

With today’s signing of the landmark Americans [with] Disabilities Act, every man, woman and child with a disability can now pass through once-closed doors into a bright era of equality, freedom and independence.

Effective July 1, 2015, employers in Virginia will be prohibited from requesting usernames and passwords for social media accounts of current employees or applicants.  Specifically, Va. Code 40.1-28.7:5 will prohibit employers from:

  • Requiring a current or prospective employee to disclose the username and password to his social media account;
  • Requiring a current or prospective employee to add an employee, supervisor, or administrator to his list of contacts;
  • Using any login information inadvertently obtained to access an employee’s social media account;
  • Disciplining an employee for exercising his rights under this section;
  • Refusing to hire an applicant for exercising his rights under this section.

Virginia appears poised to join Maryland and a handful of other states that ban employers from asking current employees and applicants for access to their social media accounts, like Facebook. Earlier this month, the Virginia legislature passed a bill that precludes an employer from requesting or compelling an employee to: 1) divulge passwords or usernames for the employee’s social media accounts; or 2) add the employer to the contacts associated with the employee’s social media accounts. The restrictions also apply to applicants for employment. It is still permissible under the law for an employer to seek access information to an employee’s social media accounts, but only if the information is reasonably needed to investigate allegations of unlawful employee activity or necessary to comply with other laws. Unless vetoed, the law will become effective by the end of March 2015, or sooner.

In a case with potential significance for many Virginia employers, the Court of Appeals of Maryland recently decided in Cunningham v. Feinberg that the Maryland Wage Payment and Collection Law (“MWPCL”) may be applicable to unpaid wage claims arising from employment agreements entered into in Virginia. Thus, a Virginia employer that does not exercise care in the payment of wages under a contract entered into with an employee who will be performing work in Maryland may find itself embroiled in a claim for unpaid wages, statutory treble damages, attorney’s fees and costs of litigation.

On July 21, 2014, President Obama issued an executive order that amends Executive Orders 11478 and 11246 by adding LGBT anti-discrimination protections. President Obama took this action after Congress failed to pass the Employment Non-Discrimination Act, which would have prohibited all employers with fifteen or more employees from discriminating based on “sexual orientation” or “gender identity.”

Executive Order 11478 protects federal employees against certain types of discrimination. When President Nixon issued Executive Order 11478 in 1969, it barred discrimination “because of race, color, religion, sex, national origin, handicap, or age.”  Subsequently, President Clinton amended Executive Order 11478 to include “sexual orientation.” President Obama’s executive order, which is effective immediately, provides further protections for federal employees by prohibiting discrimination based on “gender identity.”

July 3, 2013
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Affordable Care Act Photo (00345306).jpgOn Tuesday, July 2, the Treasury Department announced that the Obama Administration will delay the Affordable Care Act’s mandatory employer and insurer reporting requirements for another year.  These requirements will not take effect until 2015 while the Treasury Department works out new rules to help businesses navigate the complexities of the health care mandate. 

The Treasury Department similarly delayed until 2015 the assessment of penalties, also known as shared responsibility payments, for large employers that do not meet minimum standards of health care coverage under the Affordable Care Act.  Large employers are defined in the act as having an average of at least 50 full-time employees on business days during the preceding calendar year.

The postponement does not affect the individual mandate regarding coverage or the on-going development of health care “exchanges”—the government-sponsored health care marketplace where individuals and businesses will be able to shop for health care plans offered by private providers. 

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The Americans with Disabilities Act (ADA) prohibits employers from discriminating against qualified individuals with disabilities.  The act was amended by the ADA Amendments Act (ADAAA) of 2008 with final regulations being issued in March 2011.  A significant change in the ADAAA was an expanded definition of “disability.”

For an impairment to be considered a disability under the pre-amended ADA, it had to prevent or severely restrict a person from performing activities central to most people’s daily lives.  With the enactment of the ADAAA and its subsequent regulations, it is now much easier for an impairment to be considered a disability.  To qualify as a disability, the impairment is only required to substantially limit one major life activity with life activities including reading, concentrating, communicating, working and thinking.

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January 2013 will mark the two-year anniversary the final regulations to the Americans with Disabilities Act Amendments Act or the ADAAA took effect.  As we move into the third year of these new “employee friendly” regulations, it would serve to take a moment to review the prior and current state of the law. 

The Americans with Disabilities Act (ADA) 

In July 1990, the Americans with Disabilities Act became law.  The purpose of the ADA is to provide for the elimination of discrimination against individuals with disabilities.  Disputes under the original ADA focused on the definition of disability.  Impairments such as mental illness or mental disability were often disputed with some level of success.  Interpretation centered on whether an individual was disabled rather than the accommodation an employer could provide to assist that individual in performing his or her job.

JobLossPhoto (00256022).JPGEarlier this summer, in preparation for severe budget cuts and potential loss of significant

DOL’s position on this issue is incorrect. The precedent cited by DOL is not analogous to sequestration and is contrary to the purpose and scope of the Act as stated in the regulations. In this article, we will review the WARN Act, discussing its requirements, the unforeseen business circumstance exception, as well as what employers should do as the date for sequestration approaches. business, several large Federal contractors indicated their need to issue WARN notices in order to comply with Federal law. On July 30, to quell anxiety that would be caused by such notices, the Department of Labor (“DOL”) issued a guidance letter stating WARN Act notification is unnecessary because sequestration is an “unforeseen business circumstance.”

The 2011 session of the Virginia General Assembly has ended.  Below is a summary of employment law legislation that passed both houses during the session. 

HB 1705.  Workers' compensation; modifications to employee's home and automobile

  • Authorizes the Workers' Compensation Commission, in awards entered for incapacity for work, to require the employer to furnish and maintain modifications to or equipment for the injured employee's automobile

HB 1812.  Workers' compensation; occupational disease presumption for certain police officers.

  • Adds police officers of the Metropolitan Washington Airports Authority and Norfolk Airport Authority to the list of public safety employees who are entitled to the presumption that certain infectious diseases are occupational diseases compensable under the Workers' Compensation Act.

HB 1859.   Public Procurement Act; state agencies to include in contract that contractor use E-Verify program.

  • State agencies will be required to include in every contract over $50,000, a provision requiring the contractor to use the E-Verify program for employees who will be performing work under the contract within VA.

SB 823.  Workers' compensation; presumption that certain injuries are work related.

  • A presumption is created that an injury is work related where an employee is physically or mentally unable to testify and there is unrebutted prima facie evidence that the injury was work related.