Monday Morning Minute
In This Issue
NLRB Rulemaking Priorities Announced
ADA(AA) Quiz
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                  June 3, 2019


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The National Labor Relations Board has announced its rulemaking priorities in May, via its Unified Agenda of Regulatory and Deregulatory Action maintained by the OMB.  The NLRB's rulemaking efforts intend to focus on three areas:
Access to Employer Property:   The NLRB's proposed rule  will address non-employee union organizer access to private property where the property is generally open to the public.  The NLRB will examine questions raised by the Obama Labor Board in the 2010 Roundy's  decision, which found organizers were unlawfully denied access to Roundy's stores, in light of other precedent to the contrary, including the Supreme Court's 1992 Lechmere decision.
Student Organizing:   The issue of whether student teaching and research assistants at private universities are employees and able to organize under the NLRA.  In 2016, the Obama Labor Board issued its decision in Columbia University, finding that teaching and research assistants were employees able to organize, and overruling precedent previously established in Brown University.
Representation Election Rules:   Rulemaking dealing with expedited representation election regulations, blocking charges, voluntary recognition, and construction industry rules.  The NLRB is expected to polish, fine-tune, and clarify its rules rather than repeal them. 
Call any Spognardi Baiocchi attorney if you need help with you labor relations or matters before the NLRB.  
Clients who call in on SB ANSWERS: OUR MONTHLY TELEPHONE CONSULTATION PROGRAM ask more questions that bring into play  a consideration of the Americans with Disabilities Act than any other law. Of course, employers are required to deal with injuries and illnesses in the workplace nearly every day. FMLA is a close second!  Workers Compensation is third. 

Some of these are one-time,  short term incidents while some are long-term chronic incidents----and many raise questions under all three of these laws, sometimes called the 'Bermuda Triangle' because quite frankly it is easy for employers to make mistakes and get lost in this murky area. Add in collective bargaining agreements and employee benefit plans that must be considered and it's safe to say------Watch out: Danger Ahead!   So we thought we would lay out a quiz to help you test your basic knowledge in this troublesome area.  

1. If an employee is not eligible for FMLA leave, then they need not be considered for leave under ADA.
2. Cancer is a "disability" covered by ADA.
3. If an employee or applicant is collecting Social Security Disability under the SSDI program they can still make a viable claim under ADA to request or demand a job accommodation.
4. Congress passed, and the President George H. W. Bush signed into law, the Americans with Disabilities Act of 1991 which  defined a "disability" under ADA, the same as the term ---"serious health condition" is defined under the Family and Medical Leave Act.
5. If it is obvious that you will not be able to accommodate an employee's or applicant's  clear and obvious disability you need not ask the employee/applicant about ways that you might be able to accommodate it.
6. If an applicant for a job cannot fill in your job application due to a disability, you need not consider them further.
7. Even if you provide "light duty" for individual employees returning from workers compensation leave, you can maintain a rule which  states that you need not provide it to employees who are injured off the job.
8. Carpal Tunnel Syndrome is a "disability" covered by ADA.
9. An individual who suffers a severe compound fracture of the arm that completely heals in four months' time is likely to be considered covered by ADAA's definition of "disability".
10. It is completely acceptable and a "best practice", to limit all leaves of absence to one(1) year.
As one can see, ADA deals with questions of great importance. Indeed when we reveal and  discuss the answers next week we will point out that the EEOC and others have filed class actions on some of these points. Again----Watch out: Danger Ahead!

SPOGNARDI BAIOCCHI llp is a law firm dedicated to partnering with companies of all sizes to address the full spectrum of legal concerns for its business.  Our commitment is to find common sense solutions that fit each clients' unique situation to labor, employment, human resources and general business needs. 

With over 50 combined years of experience among its 2 founding partners in these areas, we can assist businesses in developing custom solutions to today's tough issues.  And as litigators, who combined have over thousands of trials  "under their belts" before state and federal courts as well as administrative agencies (such as the NLRB) you will find no better advocate and partner. 


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