FOR IMPORTANT UPDATES ON COVID-19, NEW YORK STATE ANTI-HARASSMENT TRAINING REQUIREMENT AND NY SICK LEAVE LAW, CLICK HERE.
The following are some of the major changes implemented by the ADAAA:
Because the scope of “disability” has been expanded, the ADAAA has the practical effect of shifting the focus from “whether an individual has a disability,” to determining whether the individual was “qualified” for the position in question and whether the individual can be “reasonably accommodated.”
Employers should review their policies and procedures to take into account the ADAAA. In addition, employers should be aware that certain states have disability laws that are already more expansive than the ADA (e.g., New York, New Jersey and California).
Employers Must Start Using Revised Form I-9
Employers must begin using a new Form I-9 beginning February 2, 2009. The form (which will be available on www.uscis.gov in the near future) reflects the USCIS interim final rule which was published in the Federal Register on December 17, 2008. The final rule streamlines the Employment Eligibility Verification (Form I-9) process by:
Employers who fail to begin using the new I-9 form by February 2, 2009 may be subject to fines.
The form should be used for new hires, as well as to re-verify any employee with expiring employment authorization.
New York Enhances Protections For Individuals with Prior Criminal Convictions
Effective February 1, 2009, employers are required to (1) provide a copy of Article 23-A of the Correction law to individuals subject to background checks, and (2) post a copy of Article 23-A in a visually conspicuous manner in an accessible location in the workplace.
Article 23-A of New York’s Correction Law requires employers to consider and balance various factors before terminating or refusing to hire individuals with prior criminal convictions (absent a specific legal prohibition on hiring applicants with a criminal history).
Employers who evaluate an applicant’s criminal history in accordance with the Article 23-A factors and hire such applicant in good faith are also afforded certain protections from negligent hiring claims under New York State Human Rights Law.
Copies of Article 23-A can be downloaded at www.labor.state.ny.us/agencyinfo/article23a.shtm.
New York Employers’ Use of Employee Personal ID Information Restricted
New York Labor Law Section 203-d, which became effective January 3, 2009, states that employers may not, unless otherwise required by law:
The law imposes a civil penalty of up to $500.00 on any employer who “knowingly” violates Section 203-d, and states that “it shall be considered presumptive evidence that a violation of this section was knowing if the employer has not put in place any policies or procedures to safeguard against such violation, including procedures to notify relevant employees of these provisions.”
Employers should also be aware of N.Y. Gen. Bus. Law Section 399-dd, which provides additional safeguards for employee social security numbers, and prevents employers from:
The law goes on to list exceptions to these rules, including (but not limited to) employment applications, COBRA forms and medical/welfare benefit claim forms.
New York Mini-WARN Enhances Protections for Employees Affected by Layoffs or Plant Closings
The New York State Worker Adjustment and Retraining Notification Act (“NY Mini-WARN”) becomes effective February 1, 2009, and imposes greater obligations than the federal Worker Adjustment and Retraining Notification Act (“WARN”).
NY Mini-WARN applies to employers with 50 or more full-time employees and requires such employers to provide 90 days’ advance written notice to employees affected by:
Under NY Mini-WARN, employers who violate the law can be held liable for (1) back pay and employee benefits capped at 60 days of the violation, and (2) a civil penalty of $500.00 per day of violation.