North Carolina has joined the growing number of states imposing strict limits on smoking in public places and places of employment. The new statute prohibits smoking in state government buildings and state owned motor vehicles. It also bans smoking in state psychiatric hospitals.

In addition, smoking is now prohibited in all “enclosed areas” of restaurants and bars.

The statute allows smoking in “designated smoking” guest rooms hotels, motels, or other “lodging establishments.” However, no more than 20% of the rooms may be designated as smoking rooms.

Smoking is also permitted in “cigar bars” so long as the cigar bars are freestanding and the smoke from the bar does not migrate into areas where smoking is prohibited. The term “cigar bar” is clearly defined as an establishment that generates at least 60% of its revenue from the sale of alcoholic beverages and 25% from the sale of cigars. It must have a humidor on the premises and prohibit entry to anyone under age 21. Cigar bars will be required to make quarterly reports to the North Carolina Department of Health and Human Services regarding their revenues. Smoking is also permitted in private clubs.

Persons managing restaurants and bars where smoking is prohibited are required to post no smoking signs, remove indoor ashtrays, and to require anyone who smokes to extinguish his or her tobacco product. If a patron continues to smoke after being advised to stop doing so is subject to a fine of up to $50.00.

Local governments may elect to impose more re-strictive guidelines, so long as they do not conflict with the state statute. Local guidelines may include modestly higher penalties for repeat offenders.

The new law becomes effective January 1, 2010.


Background and Introduction

Employees in Europe and much of the rest of the world have enjoyed generous vacation time mandated by law for many years. In fact, 147 nations mandate vacation of some sort. The United States is the only industrialized nation in the world without a minimum annual leave law. Even China mandates three weeks off. Canada mandates two weeks for all employees and three weeks for those with five years or more with the employer.

According to the Bureau of Labor Statistics, the average American today annually works a full month (160 hours) more than in 1976. Job-related stress costs American business $344 billion a year in absenteeism, lost productivity and health costs. Indeed, some 75% of visits to primary care physicians come from stress-induced problems.

Not surprisingly, the Pew Research Center reports that more free time is a number one priority for middle class Americans with 68% listing it as a high priority.

In 2008, only 52% of American workers took a vacation of a week or longer, and only 14% took two weeks or more of vacation time.

Men who do not take regular vacations are 32% more likely to die of heart attacks and 21% more likely to die early of all causes, while women who do not take regular vacations have a 50% greater risk of heart attack and they are twice as likely to be depressed as those who take regular vacations.

The foregoing is excerpted from the data contained in the proposed Paid Vacation Act of 2008 recently introduced into the House of Representatives by Rep. Grayson of Florida. I might add that there is data suggesting that European workers are more productive per hour worked (Americans are more productive per person because we work many more hours). I have long hypothesized that there might be a connection between more time off and higher productivity, not to mention better health.

Paid Vacation Act of 2009

The Paid Vacation Act of 2009 (HR 2564) would mandate one workweek of paid vacation during each 12 month period for employers with 100 or more employees beginning on the date of enactment. The provision would be added to the Fair Labor Standards Act as an amendment.

Beginning three years after the date of enactment, employees of employers with 50 or more employees would be entiteld to one workweek of paid vacation during each 12-month period. Employees of employers with 100 or more employees would be entitled to two weeks.

Employees would be obligated to give 30 days’ notice prior to taking vacation. Employees would be eligible if they had worked for at least 12 months for the employer and worked at least 1250 hours.

The time could not be accrued and rolled over.

The Significance of the Proposed Act

Although I do not have data in hand yet as to the number of employees in the United States whose employers provide paid vacation, my recent study of paid time off and sick leave in general suggests that a substantial majority of employers do provide such paid time off. Persons least likely to have paid vacation are those at the bottom of the wage and socio-economic scale.

Although this bill would increase cost for some employers, in theory it might reduce health care and other costs. Of course, whether the United States is willing to join its other industrialized colleagues in mandating time off remains to be seen. One way or another, though, 2009 is shaping up to be a very interesting year in the world of labor and employment law.

Federal COBRA Continuation Coverage Plans

The ARRA provides subsidies for “COBRA continuation coverage,” which is required by federal law for “group health plans.” A group health plan generally includes any plan sponsored by an employer or employee organization to provide health care.

The subsidy applies to health insurance (including self-insurance) and Health Reimbursement Arrangements (HRA). However, it does
apply to Flexible Spending Accounts (FSA) or Cafeteria Plans!

State Mini- COBRA Plans

Most states have “Mini-COBRA” plans that cover employers with fewer than 20 employees. The ARRA subsidy applies to State “mini-COBRA” plans if the coverage is comparable to COBRA.

Comparable continuation coverage does not include every State law right to continue health coverage. To be comparable, an eligible individual must generally have the right to continue coverage substantially similar to that provided under the group health plan at a monthly cost based on a specified percentage of the plan’s cost of providing such coverage, i.e., a limit on the premium.

What If the State Plan Varies in Length or Has Different Qualifying Events?

The fact that a state plan has a shorter or longer period of continuation coverage than the federal COBRA program does not disqualify the State program from being “comparable” for purposes of the subsidy. Likewise, the fact that the state plan applies different qualifying events does not make participants ineligible for the federal subsidy. The critical issue is how the premium is calculated.


The State Mini-COBRA program in a particular state provides for a maximum of 6 months of continuation coverage(rather than 18 months under COBRA). The premiums, however, are the same as those paid for active employees. In addition, the State
requires that an employee be covered by the employer’s group health insurance program for a minimum of three months prior to the qualifying event in order to receive the State Mini-COBRA benefits.

Such a State program is treated as comparable continuation coverage for purposes of the ARRA and participants are eligible for the subsidy.

September 1, 2008

To be eligible for the subsidy, an employee must be involuntarily terminated between September 1, 2008 and December 31, 2009. An employee involuntarily terminated before September 1, 2008, is not eligible for the subsidy, even if the employee’s COBRA coverage did not start until after September 1.


An employee was laid off on June 15, 2008, but received severance pay, including health insurance benefits, through December 31, 2008. The employee is not eligible for the subsidy in March 2009. It is the date of involuntary termination that controls–in this case June 15, 2008.

February 17, 2009

This is the date the ARRA became law. Persons eligible for COBRA after September 1, 2008 and prior to February 17, 2008, who do not have it (even if they had it and dropped it), may elect COBRA during an extended enrollment period.

March 1, 2009

The first day of subsidy for most persons who had COBRA continuation coverage in effect on February 17, 2009.

December 31, 2009

This is the last day that an employee can be involuntarily terminated and still be eligible for the COBRA subsidy, unless the subsidy is extended by Congress.

September 30, 2010

The COBRA subsidy runs for nine months only, unless Congress extends the period of subsidy. Consequently, an employee who was involuntarily terminated on December 31, 2009 would be eligible for the COBRA subsidy through September 30, 2010.


On December 15, 2009, an employee is involuntarily terminated and elects COBRA coverage that day. She will receive the subsidy for 9 months, until the earlier of August 15, 2010, or until she becomes eligible for other group health plan coverage or Medicare.


In the current Congress numerous employee-friendly bills have been introduced. Among the most significant and most likely to be adopted are changes to the National Labor Relations Act–the first amendments in over 30 years and perhaps the most significant amendments since the Act was first adopted in 1935, or at least since the Taft-Hartley amendments in 1947. This post begins a series explaining and analyzing the proposed changes to the Act.


Senators Dodd, Durbin, and Kennedy recently introduced the “Re-empowerment of Skilled and Professional Employees and Construction Tradeworkers Act” (RESPECT) (S. 969). The proposed statute would modify the definition of a “supervisor” in the National Labor Relations Act (NLRA). Congressman Rob Andrews and Congresswoman Rosa DeLauro have introduced companion legislation in the House of Representatives.

The NLRA defines a supervisor as an:

individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

The amendment would add “and for a majority of the individual’s worktime” after “interest of the employer” and strike the words “assign” and “responsibility to direct them.”  The amended section of the  statute would read, therefore:

any individual having authority, in the interest of the employer and for a majority of the individual’s worktime, to hire, transfer, suspend, lay off, recall, promote, discharge, reward, or discipline other employees. . .

What Is the Significance of the RESPECT Act?

On its face, this looks like a modest change, but it could  have far-reaching impact, particularly in health care.   There has long been tension as to who is and who is not a supervisor. Supervisors are not allowed to organize into unions. When a union seeks to organize an employer for the first time, the bargaining unit defined by the parties must exclude supervisors. Consequently, employers generally want to treat as many employees as possible as supervisors, while the union wants to minimize the number of persons identified as supervisors in order to limit the size  of the bargaining unit.

There has long been tension between the more conservative and the more liberal members of the National Labor Relations Board (NLRB).  When I worked at the Board the staff often joked that for some Board members “everyone was a supervisor.”  

The issue  came to a head in  the broad context of charge nurses. Generally in a hospital each unit has at least one charge nurse.  The nurse may assign others duties and oversee the unit for his or her shift.  However, charge nurses usually do not have the power to hire and fire nor perform other managerial functions.  In 1996, the Board held in Kentucky River Community Care, Inc,; 323 NLRB No. 209 (1997),  that  six  registered nurses in a 110 member bargaining unit  were not supervisors because the nurses  did not use “independent judgment” when they exercised “ordinary professional or technical judgment in directing less-skilled employees to deliver services in accordance with employer-specified standards.”  

The Supreme Court ultimately rejected the Board’s reasoning, however in NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001).   In 2006, the Board decided Oakwood Healthcare, Inc., 348 NLRB No. 37 (2006), finding charge nurses supervisors and devising a new test for measuring who is and who is not a supervisor, consisten with the Supreme Court’s pronouncement in Kentucky River. The result is employees who perform even limited supervisory duties part of the time may be viewed as supervisors and prohibited from joining labor organizations.  By requiring that an employee can only be deemed a supervisor under the NLRA if he or she acts as a supervisor the majority of  his or her worktime and by eliminating the words “assign” and “responsibility to direct them,” the amendment would allow most charge nurses, and  perhaps many other part-time supervisors, to be represented by a union.

Needless to say, unions are lobbying hard for the bill, while employers are generally opposed to it.

On May 18, the Healthy Families Act was introduced in the House of Representatives. The bill would require employers with 15 or more employees to provide workers with paid sick leave.

The proposed statute, which had been introduced in the previous Congress in 2007, would require employers to provide workers with up to seven days of paid sick leave annually on an accrued basis. Similar legislation has been introduced in the Senate by Sen. Edward Kennedy.

Under the proposed statute workers would earn one hour of paid sick leave for every 30 hours worked to a maximum of seven days (56 hours) per year. Employers would be permitted to allow employees to accrue more than 56 hours but would not be required to do so.

The statute would require that workers begin accruing leave on their first day of employment. A worker could begin using accrued leave after completing 60 days of employment. Accrued but unused leave would carry over from one year to the next to a maximum of 56 hours, unless the employer allowed greater accumulation.

Employees would be allowed to use leave for their own illness or to care for sick parents or children. In addition, leave could be used to visit a physician or other health care provider for preventive care. Further, leave could be used for absence which resulted from “domestic violence, sexual assault, or stalking,” in order to obtain medical care, to obtain services from a victim services organization, or to participate in related legal proceedings.

The proposed legislation would allow employers to require that employees provide certification by their doctor if they are absent for more than three consecutive days.

According to Representative DeLauro of Connecticut, the bill’s sponsor, almost half of all U.S. private sector workers have no paid sick leave. Among the lowest quartile of wage earners, 79% have no leave.

A recent report by the Center for Economic and Policy Research comparing laws and policies related to sick leave in 22 different countries, notes that the United States and Japan are the only countries of the 22 examined that do not provide any short-term paid sick leave to workers. All of the countries, except for the United States, provide long-term paid sick leave to workers with serious illnesses.

In this era of Swine Flu concerns, there is some data suggesting that paid sick leave helps to reduce the spread of contagious illness.

One major employer concern is the abuse of sick leave. Large employers lose about $850,000 annually from unscheduled sick and other personal days. However, San Francisco, which enacted mandatory sick leave in 2007, reports no negative impact on business compared to businesses in surrounding communities.

Wisconsin has now become the 27th state to adopt legislation prohibiting smoking in bars and restaurants. The new legislation becomes effective July 5, 2010.

The statute is expansive, prohibiting smoking in any “public place” or “place of employment.” In addition, it bans all indoor smoking with the exception of private homes, designated rooms in hotels and similar facilities, and some rooms in assisted living facilities.

The legislation also reaches bowling alleys, taverns, halls used for private functions and areas in buildings used to assemble goods, products, or merchandise. Existing cigar bars and specialty tobacco shops will be grandfathered in, but those opening after July 5, 2010 must be smoke-free.

The act defines a “place of employment” as “any indoor place that employees normally frequent during the course of employment,” including an office, work area, employee lounge, restroom, conference room, meeting room, classroom, or hallway. A “public place” is a place “open to the public or a place to which the public has access or may be invited.”

For purposes of the ARRA, the term “involuntary termination” means more than simply being laid off or downsized. An employee is considered to be involuntarily terminated if:

  • Layoff.The employee is laid off, regardless of whether or not the employee enjoys recall rights.

  • Other Suspension.The employee is suspended in some other fashion which results in the loss of group health insurance coverage.

  • Resignation-Transfer.The employee resigns as the result of a material chagne in the geographic location of employment. For example, an employee living and working in New York resigns rather than moving to California when her employer relocates.

  • Resignation–Hours Reduction.The employee resigns when the employee’s hours are cut sufficiently to constitute a “material negative change” in the employment relationshiip for the employee. A reduction from 40 hours per week to 35 hours per week is unlikely to be considered a “material negative change,” while a reduction from 40 hours per week to 40 hours per month would almost certainly constitute such a change. The range in between such extremes will be open to interpretation and likely litigation. A reduction of hours which does not constitute a “material negative change” does not make an employee eligible for the subsidy.

  • Retirement.An employee who retires in lieu of being terminated is deemd “involuntarily” terminated, if he or she knows that the only alternative to retirement is termination.

  • Strikes and Lockouts. If employees strike, they do not have any rights to COBRA continuation coverage or the subsidy. Their suspension from work is voluntary. However, if an employer engages in a lockout so taht employees cannot work, the employees are deemed “involuntarily” terminated.

  • Buyouts. If an employee accepts a “buyout” in return for a severance package, the employee will be considered terminated “involuntarily” if after some period of time at lest some employees not bought out will be terminated.

  • Discharge. If an employee is discharged because of an extended illness or disability or “for cause” because of poor performance, poor attendance, or some other reason, the employee is deemed to have been involuntarily terminated for purposes of the ARRA. However, if the discharge is for “gross misconduct,” then the termination is not a qualifying event and the employee is not eligible for COBRA continuation coverage or the subsidy.

What Is Gross Misconduct?

Gross misconduct includes “intentional, wanton, willful, reckless, or deliberate indifference to an employer’s interest” by the employee. Illegal or dangerous acts committed in the workplace (and sometimes those committed away from work) will likely constitute gross misconduct. Examples include a teacher engaging in sexual activity with minor students or an airline attendant striking a coworker during flight.

On January 1, 2009, the ADA Amendments Act of 2008 became effective. The new statute overturns Supreme Court decisions that narrowly construed the Americans With Disabilities Act, and provides clarification regarding some of the terms in the ADA. Although the final bill represented a compromise between the business community and advocates for disabled persons, the likely effect of the Amendments near term is an increase in the number of claims of disability discrimination and more success by the disabled in asserting their claims.

The following are highlights of the changes in the statute:

Major Life Activities Defined. The ADA defines disability as ” a physical or mental impairment that substantially limits one or more major life activities.”  Courts have labored to define “major life activities.”  The amendments now define such activities to include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.  The term also includes “the operation of a major bodily function,” including functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

Regarded As Having An Impairment. The ADA also defines “disabled” as being “regarded as” having a disability.  For example, an employer who discriminates against an employee who has recovered from cancer, may be liable for discrimination for “regarding” the employee as disabled.  The amendments broaden the scope of that language, providing that an employee is “regarded as” having a disability if the employee is subjected to discrimination because of an “actual or perceived physical or mental impairment” regardless of whether the disability or impairment limits or is perceived to limit  a major life activity.

Mitigating Measures No Longer Considered. The Amendments overturn the controversial decision of the Supreme Court in Sutton v. United Air Lines in which the Court held that in determining whether a person was disabled, courts could consider “mitigating measures” like assistive or prosthetic devices that mitigate the individual’s impairment. Under the new law, the determination of whether an impairment substantially limits a major life activity must be made without consideration of the “ameliorative effects of mitigating measures.”

Restrictions On Definitions Lifted.. In Toyota Motors Mfg. Ky, Inc. v. Williams, the Supreme Court narrowly construed the definition of a disability. The Court held, among other things, that to be “substantially limited” in performing manual tasks, one must have an impairment that prevents or severely restricts him or her from doing activities that are of “central importance to most people’s daily lives.” In addition, the Court noted, the impairment’s impact must be permanent or long-term. The new Amendments require that the term “substantially limits” must be interpreted consistent with the findings and purposes of the amending statute, and expressly rejects the narrow reading of the Court in Toyota Motors. An impairment that substantially limits one major life activity no longer must limit other major life activities in order to be considered a disability. In addition, an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

The statute directs the EEOC to promulgate new regulations consistent with the amended statute.

As with all employment statutes, there is bound to be some abuse in filing charges by unscrupulous employees. However, the amendments are more consistent with Congressional intent articulated in the legislative history of the original statute. The amended statute should not measurably increase the burden on employers, so long as employers have a specific plan or program for reasonably accommodating disabled persons.

In the coming weeks, I will elaborate on the impact of the amendments and keep you updated on how the courts apply them.</span?

In January 2008, President Bush signed the National Defense Authorization Act (NDAA), which, among other things, provided for FMLA (Family and Medical Leave Act) leave specifically for military families. New regulations from the Department of Labor implement these provisions and in additino make several significant modifications in the application of the FMLA. These new rules become effective January 16, 2009. Employers should prepare now to apply the new rules.

The following are a few of the highlights of the new provisions:

New Military Caregiver Leave. Eligible employees may now take up to 26 weeks of FMLA leave to care for a member of the Armed Forces (including members of the National Guard and Reserves as well as Regular Armed Forces) who has a serious injury or illness incurred “in the line of duty while on active duty” for which the military person is undergoing medical treatment, recuperation, or therapy. The leave is available to the spouse, child, parent or “next of kin” of the military personnel.

New “Qualifying Exigency Leave” for Some Military Families. In the event of certain defined “qualifying exigencies,” the spouse, child, or parent of a member of the National Guard or Reserves may take up to 12 weeks of leave, provided that the military member is on active duty, or has been notified of an impending call or order to active duty in support of a contingency operation. The qualifying exigencies include short notice deployment, certain child care and related activities, and rest and recuperation of the military member. (The rest and recuperation leave is limited to five days.)

Serious Health Condition. The meaning of “serious health condition” is clarified.

FMLA Notices. If you do not have an employee handbook or similar document distributed to all employees which explains FMLA leave to employees, you must give a general FMLA notice to each employee at the time of hiring that employee.

Designating FMLA Leave. Once you as an employer have sufficient information to determine that an employee’s leave is covered by the FM LA, you must notify the employee within 5 business days of his or her eligibility (this is an increase from the current 2 day requirement).

Scheduling Intermittent Leave. Employees who take intermittent leave for scheduled medical treatment, now have a statutory obligation to make a “reasonable effort” to schedule the leave so as not to unduly disrupt the employer’s business operation. Under the old regulations, employees were required only to “attempt” to schedule leave with the employer’s needs in mind.