Written on October 23, 2011 by admin
Filed Under: Journal
Utah has passed an innovative new immigration law that creates a guest worker program, in direct conflict with federal law.
On March 15, 2011 Governor Gary Herbert signed the Immigration Accountability and Enforcement Amendments Act. The ceremony took place at the state capitol in Salt Lake City.
Under the new Utah immigration law, undocumented workers would pay $2.500 for a guest worker permit that allows them to be employed in Utah. Undocumented workers could also apply for a family permit, which would allow all members of the immediate family to work in Utah.
The new law goes into effect on July 1, 2013.Implementation is complex, because currently the guest worker and his employer would still be in violation of federal immigration laws, including the federal Immigration Reform and Control Act or IRCA of 1986. That law imposes penalties on any employer who hires a worker who is not authorized to work under federal law.
If the Utah immigration law were implemented today, any Utah employer who hired a guest worker would be in violation of federal law. The U.S. Supreme Court may be required to rule on this conflict of law.
The federal government could issues one or more waivers, or an exemption, that would allow undocumented workers to hold jobs in Utah, with a guest worker permit. However, it is not clear if such a waiver will be issued.
Enforcement provisions of the Utah immigration law will require employers with 15 or more workers to verify that each person hired has a guest worker permit or is legally authorized to work in the U.S. The law includes penalties for Utah employers who hire undocumented workers, and encourages use of a system like E-Verify.
The law also requires the police to check immigration status when arresting a person for a serious misdemeanor or felony.
On the same day, Governor Herbert also signed a law establishing the Migration to Migrant Worker Visa Pilot Program. That program would sponsor residents of Nuevo Leon, Mexico who wish to live, work and study in Utah.
Read more on Labor Law Center Blog
Written on October 23, 2011 by admin
Filed Under: Journal
The EEOC recently backed down from wide ranging expansion of the definition of disability in the workplace.
The federal agency took the unusual action of eliminating portions of the ADAAA regulations that were most troubling to employers. On March 24, 2011, the EEOC adopted the final rule implementing the ADAAA or Americans with Disabilities Act Amendments Act. However, the EEOC stepped back from designating a list of conditions that are always disabilities under ADAAA.
Under the new regulations, the EEOC still requires an expansive definition of disability in the workplace. It cautions employers that most employees will not require extensive analysis to determine if they have a disability. However, instead of providing a list of presumed disabilities, the new ADAAA regulations link certain conditions to the individual’s limitation to a major life activity.
The definition is important, because under ADA, the Americans with Disabilities Act, employers must grant reasonable accommodations to employees with a disability.
Some conditions that are still a disability if they limit a major life activity:
- Blindness
- Deafness
- Confined to a wheelchair
- Loss of a limb
- Diabetes
- Infertility
- Cancer, even in remission
- Cerebral palsy
- Muscular Dystrophy
- Multiple Sclerosis
- Epilepsy
- HIV Positive
Mental conditions that limit brain function are also disabilities. These include major depressive disorder, bipolar disorder, OCD, autism, schizophrenia, and PTSD. Developmental disabilities like mental retardation and Down’s syndrome are also disabilities.
The EEOC cautions that in most cases, a limit to major life activities will not require scientific, statistical or medical analysis. They require employers to broadly interpret the definition of disability.
An individual has a limit to a major life activity if it is more difficult, time-consuming, effortful or painful for him to perform the activity compared to most people in the general population. Even if the impairment does not prevent or severely restrict, or even significantly restrict the individual from performing the life activity, it can be considered substantially limiting. For example, with sufficient therapy, an individual with cerebral palsy may walk as fast as the average person. However, that effort will always be effortful and may be painful. Therefore, the employee with cerebral palsy has a disability under the ADAAA definition.
The good news for employers is that under the new definition, there needs to be some level of impairment of a major life activity, for the employee to be considered disabled.
Under the previous definition, an employee with arthritis was always disabled. Yet, some people whose x-rays show they have significant arthritis have little pain and no significant impairment to major life activities. Under the old regulations, this individual would have been “disabled” and entitled to accommodations like unpaid time off for doctor’s appointments. Under the new ADAAA regulations, the employee is not disabled.
Under the previous definition, an employee with high blood pressure was disabled and entitled to accommodations. Now, the employee must show that his condition limits a major life activity or major bodily function. An employee with severe cardiovascular disease would still be disabled. An otherwise healthy worker with slightly elevated blood pressure probably would not be.
An employee with a missing limb has a disability under the new definition, even if she has a prosthesis that allows her to function as well as the average person. Her artificial arm or leg cannot be counted when determining whether she has a disability. However, normal eyeglasses and contact lenses can be included in assessing whether the person has a disability.
The failure of a single organ such as kidney failure or liver failure is presumed to be a disability under the new regulations.
When a condition interferes with major bodily functions, it is considered to limit major life activities. These functions include sense organs, digestion, genitourinary tract, neurological function, respiratory, circulatory or cardiovascular and reproductive problems, among others. For example, cancer, while limits normal cell growth, is a disability even when in remission. HIV, which impairs normal immune function, is a disability even if the patient has no symptoms.
The new definition also opens the door to temporary conditions being a disability under ADA. The EEOC now says that even when a condition is expected to last fewer than 6 months, the effects may be substantially limiting. More information will be published when it becomes available.
Read more on Labor Law Center Blog