HR Regulatory Updates

The Electronic Signatures Act Requirements

The Electronic Signatures in Global and National Commerce Act (the “Electronic Signature Act” or the “Act”) gives electronic contracts the same legal status as written agreements and sets a uniform legal standard for electronic signatures and records. The Act does not mandate electronic signatures or records. It simply ensures that transactions in the electronic marketplace are as enforceable as those created with paper and pen. The Electronic Signature Act took effect on October 1, 2000, except that any federal or state requirement that a record be retained became effective on March 1, 2001.

Consent forms for background checking and drug testing and acknowledgement of receipt for forms, policies and handbooks may all be signed using an electronic signature. Recommended best practice is that employers also collect a “wet” signature on consent forms. The HotlinkHR™ system provides for the automation of signature collection using electronic signatures and makes available printed forms for all documents that require a “wet signature”.

E-Verify Rule Effective September 8, 2009

The federal contractor E-Verify rule that amends the Federal Acquisition Regulations (FAR) to require certain federal contractors and subcontractors to enroll in and use the E-Verify system became effective on September 8, 2009.

More information is available at E-verify.

EEOC Releases Proposed Regulations Implementing the ADAAA

The Equal Employment Opportunity Commission (EEOC) has published a Notice of Proposed Rulemaking (NPR) containing proposed amendments to its Americans with Disabilities Act (ADA) Regulations and Interpretive Guidance that reflect changes made by the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). The NPR was published in the Federal Register on September 23, 2009. The EEOC will accept comments on the proposed regulations until November 23, 2009. The EEOC has also published a Question and Answer (Q/A) document on its web site which addresses some of the changes of the proposed regulations.

Like the ADAAA, the proposed regulations emphasize that the determination of whether an individual is disabled should not be the primary focus of ADA cases. Instead, the focus should be on whether prohibited discrimination has occurred. Thus, from a practical standpoint, employers in most situations will be better able to defend an ADA lawsuit by showing that they made a good faith effort to accommodate the employee, rather than by challenging the employee's disability.

The most significant changes in the proposed regulations include:

• Broad interpretation of the term "disability"
• Broad interpretation of the term "substantially limits”
• Additions to major life activities
• Additions to mitigating measures
• Classification of episodic illness
• Clarification of reasonable accommodation
• “Substantially” limited in working definitions
• Definition of how an employee may be regarded as disabled
• Actions taken based on symptoms of an impairment or based on the use of mitigating measures
• Record of a disability

For additional information please visit Ford & Harrison LLP