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.

One of the provisions of the stimulus bill known as the American Reinvestment and Recovery Act of 2009 is the COBRA subsidy. The statute provides a federal subsidy for COBRA premium for employees involuntarily terminated from their employment, The new law was signed on February 1, 2009. It became effective for most employers with 20 or more employees on March 1, 2009. (Employees in states with Mini-COBRA statutes covering employers with fewer than 20 employees may also be eligible for the subsidy.)

The new law has three major components:

  1. The federal government will pay 65% of the COBRA premium for eligible individuals who were involuntarily terminated between September 1, 2008 and December 31, 2009.

  2. Persons who were terminated after September 1, 2008 but who did not elect COBRA coverage or elected it and then dropped it (perhaps for financial reasons) now will have an opportunity to elect COBRA and pay only 35% of the premium.

  3. Employers have the option to offer coverage other than that which the employee had immediately prior to termination. (This is contrary to the longstanding COBRA provisiions which give the employee the right only to continue what the employee already has.)

The subsidy is available to “assistance eligible individuals” (“Eligible Individual”). The subsidy is available to any “Assistance Eligible Individual” (“Eligible Individual”). An Individual is eligible if:

  1. S/he Is a “qualified beneficiary” (an employee, spouse, or dependent);

  2. The qualifying event was the “involuntary termination of employment” between September 1, 2008 and December 31, 2009;
  3. The Individual is eligible for COBRA continuation coverage (or comparable State Mini-COBRA coverage) at any time during that 16 month period; and

  4. The Individual elects the COBRA coverage.

The first bill signed into law by President Obama was the Lily Ledbetter Fair Pay Act, which overruled a controversial 5-4 decision by the Supreme Court, Ledbetter v. Goodyear Tire & Rubber Co., Inc., issued in 2007. The Act amends both the Title VII and the Age Discrimination in Employment Act and modifies the operation of the Americans with Disabilities Act and the Rehabilitation Act of 1973. The Act provides that in cases involving discrimination in compensation, under Title VII or the ADEA, an unlawful employment practice (which would trigger the running of the statute of limitations) occurs (1) when a discriminatory compensation decision or other practice is adopted; (2) when an individual becomes subject to a discriminatory compensation decision or other practice; or (3) when an individual is affected by application of a discriminatory compensation decision or other practice, “including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.” (emphasis added)

The Act further provides that in addition to the damages recoverable under the Civil Rights Act of 1991, 42 U.S.C. § 1981a, Title VII claimants may recover back pay for up to two years preceding the filing of the charge, “where the unlawful employment practices that have occurred during the charge filing period are similar or related to unlawful employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge.”

The provisions of the new statute are also extended to compensation claims under the Americans with Disabilities Act and the Rehabilitation Act of 1973.

Employers must now be aware that discriminatory compensation decisions made in the past which have a continuing effect on one or more employees today could now give rise to a sustainable claim of discrimination.

My advice to employers is to do a compensation audit in cooperation with employment counsel to determine whether there is any pay disparity in the work force. Even if the disparity is the result of a decision years ago, you could be subject to litigation today, including class action litigation. By taking steps now to remedy unlawful disparities,

Client Question: How will the ARRA affect groups under 20 employees covered by the State Mini-COBRA plan?
AnswerUnder Title III of the new American Recovery and Reinvestment Act of 2009 (ARRA), “assistance eligible” employees are entitled to a 65% subsidy for COBRA premiums for up to nine months. An assistance eligible employee is one who is (1) eligible for COBRA coverage, (2) elects such coverage, and (3) was involuntarily terminated from employment at any time on or between September 1, 2008 and December 31, 2009.

The Act defines “COBRA continuation coverage” as “coverage provided pursuant to [COBRA] or under a State program that provides comparable continuation coverage.” (emphasis added) It does not include coverage provided through a health flexible spending arrangement under a Section 125 cafeteria plan

Subsequent government publications have confirmed that that the extended COBRA benefits and subsidies under the American Recovery and Reinvestment Act of 2009 does in fact cover employers with fewer than 20 employees who are subject to a State program that provides coverage comparable to COBRA.


The American Recovery and Reinvestment Act of 2009, signed by President Obama on February 17, provides that the federal government will pay 65% of COBRA premiums for eligible COBRA participants who lose their jobs between September 1, 2008 and December 31, 2009. Employers have been awaiting the model notice from the Department of Labor to be  issued to eligible COBRA participants. The Model Notice (in alternative formats), has now been issued. The following is the formal announcement, which contains links to the notices..
COBRA Continuation Coverage Assistance Under The American Recovery And Reinvestment Act Of 2009
The American Recovery and Reinvestment Act of 2009 (ARRA) provides for premium reductions and additional election opportunities for health benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985, commonly called COBRA. Eligible individuals pay only 35 percent of their COBRA premiums and the remaining 65 percent is reimbursed to the coverage provider through a tax credit. The premium reduction applies to periods of health coverage beginning on or after February 17, 2009 and lasts for up to nine months for those eligible for COBRA during the period beginning September 1, 2008 and ending December 31, 2009 due to an involuntary termination of employment that occurred during that period.
Individuals who request the premium reduction from their group health plan, but are denied may appeal to the Department. The Department is developing a process for reviewing denials and an official application form that must be used to file an appeal that will be available shortly.
ARRA mandates that plans notify certain current and former participants and beneficiaries about the premium reduction.
The Department created model notices to help plans and individuals comply with these requirements. Each model notice is designed for a particular group of qualified beneficiaries and contains information to help satisfy ARRA’s notice provisions.
Plans subject to the Federal COBRA provisions must send the General Notice to all qualified beneficiaries, not just covered employees, who experienced a qualifying event at any time from September 1, 2008 through December 31, 2009, regardless of the type of qualifying event. This full version includes information on the premium reduction as well as information required in a COBRA election notice.
 The abbreviated version of the General Notice includes the same information as the full version regarding the availability of the premium reduction and other rights under ARRA, but does not include the COBRA coverage election information. It may be sent in lieu of the full version to individuals who experienced a qualifying event during on or after September 1, 2008, have already elected COBRA coverage, and still have it. 
Insurance issuers that provide group health insurance coverage must send the Alternative Notice to persons who became eligible for continuation coverage under a State law. Continuation coverage requirements vary among States, and issuers should modify this model notice as necessary to conform it to the applicable State law. Issuers may also find the model Alternative Notice or the abbreviated model General Notice appropriate for use in certain situations. 
Plans subject to the Federal COBRA provisions must send the Notice in Connection with Extended Election Periods to any assistance eligible individual (or any individual who would be an assistance eligible individual if a COBRA continuation election were in effect) who:
1. Had a qualifying event at any time from September 1, 2008 through February 16, 2009; and
2. Either did not elect COBRA continuation coverage, or who elected it but subsequently discontinued COBRA.
This notice includes information on ARRA’s additional election opportunity, as well as premium reduction information. This notice must be provided by April 18, 2009.

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.

The Family and Medical Leave Act, adopted in 1993, provides eligible employees who work for covered employers the right to take up to 12 weeks unpaid leave for  the birth of the employee’s child, the placement of a child with the employee for adoption or foster care; or the care of a son, daughter, spouse, or parent with a serious health condition.  The Act also allows the employee to take such leave for the employee’s own >health condition.  Some jurisdictions allow more than 12 weeks, e.g., Washington, DC mandates 16 weeks.

Although FMLA leave is a good concept and is now well known by HR Personnel everywhere, there are some elements of the Act that have long cried for clarity, e.g, a clearer defintion of serious health condition.

In January 2008, President Bush signed the National Defense Authorization Act, which, among other things, provided for FMLA leave specifically for military families.

In 2006, the Department of Labor  solicited public comments on experience with the FMLA.  In February 2008 the Department solicited comments on proposed changes to the regulations.  On November 17, 2008, new regulations were issued, to be effective January 16, 2009.  The new regulations address a number of concerns raised by those who daily apply the statute.  In addition, the regulations integrate the new provisions for military families.

The current global economic crisis leaves little doubt that the financial lives of people around the globe are inextricably intertwined.  With the continual growth and development of technology, instant communication, and virtual offices, events in one economy are soon felt in others.

Notwithstanding this modern economic reality, many American business persons know very little about the laws and business practices of their counterparts on the other side of the Atlantic.  Seeking to serve these needs, Global Capital Law Group is expanding to provide labor and employment services to its clients around the globe.

I have just returned from Paris, where we have formed an association with attorneys in Paris and Strasbourg, as well as associations with M&A constultants, EC lobbyists, and others. </p

In the United States, this is a time of major developments in labor and employment law.  In the days to come, on these pages we will post developments in the U.S. and around the world, to help our readers and clients to be informed of current issues in the workplace. </p