As of April 1, 2018, employers in Massachusetts will be required to provide accommodations to pregnant employees.

In July, the Governor signed into law the Pregnant Workers Fairness Act that amends the Massachusetts’ general discrimination law to require employers to provide a reasonable accommodation to pregnant employees and to prevent employers from discriminating against pregnant employees who request an accommodation.

Under the law, there is no set guarantee of leave, but paid or unpaid leave to recover from childbirth may be a reasonable accommodation.

Other accommodations listed in the law may include:

  • more frequent or longer paid or unpaid breaks;
  • acquisition or modification of equipment or seating;
  • temporary transfer to a less strenuous or hazardous position;
  • job restructuring;
  • light duty;
  • private non-bathroom space for expressing breast milk;
  • assistance with manual labor; or
  • modified work schedules; provided, however, that no employer shall be required to discharge any
    employee, transfer any employee with more seniority, or promote any employee who is not able
    to perform the essential functions of the job, with or without a reasonable accommodation.

Employers do not have to provide an accommodation if doing so would create an undue hardship.

The law also poses some limits on the documentation that can be required from employees.  Generally, employers may require documentation to support a request for an accommodation, except when the employee is requesting one of the following accommodations:

  1. more frequent restroom, food and water breaks;
  2. seating; and
  3. limits on lifting over 20 pounds.

Employers will be required to give a written notice to employees of their rights beginning on January 1, 2018.  Employers will have to give such notice to any new hires after that date and to any employee who requests an accommodation.

The California Assembly has passed Assembly Bill 1008, which would affect employers’ abilities to make pre-hire and personnel decisions based on a person’s criminal history.  Governor Jerry Brown has until October 15, 2017 to act on the bill and he is expected to sign it.

AB 1008 would apply to all employers in California with five or more employees. The bill would make it unlawful for California employers to:
• Include on any application for employment any question that seeks the disclosure of an applicant’s conviction history;
• Inquire into or consider the conviction history of an applicant before the applicant receives a conditional offer of employment; and
• Consider or even disclose information about any of the following in connection with any application for employment: (1) an arrest that did not result in a conviction, subject to the exceptions in Labor Code § 432.7(a)(1) and (f); (2) referral to or participation in a pretrial or posttrial diversion program; and (3) convictions that have been sealed, dismissed, expunged or statutorily erased pursuant to law.

Once a conditional offer has been made, employers are required to conduct an individualized assessment before rescinding an employment offer based upon a criminal history. The assessment must include an evaluation of the:
• The nature and gravity of the offense and conduct;
• The time that has passed since the offense or conduct and completion of the sentence; and
• The nature of the job held or sought.

If the employer makes a preliminary decision that the applicant’s conviction history is disqualifying, the employer must notify the applicant of this preliminary decision in writing. However, the employer is not required to explain to the applicant its reasoning for making the preliminary decision.

The notice requirements are similar to those under Fair Credit Reporting Act.  In short, employers must state which convictions are disqualifying, include a copy of the criminal history and advise that the applicant has at least 5 business days to challenge the accuracy of the report or to explain the circumstances of the conviction.

If the applicant timely notifies the employer in writing that he or she is disputing the conviction history and is taking steps to obtain evidence to support this, the employer must provide five (5) additional business days to respond to the notice. The employer must also consider any additional evidence or documents the applicant provides in response to the notice before making a final decision.

Once a final decision is made, an adverse action notice must be given to the applicant and the applicant must be advised that he or she has the right to file a complaint with the Department of Fair Employment and Housing.

We will keep an eye on this one since it will likely go into effect on January 1, 2018 if it is signed into law.

Alabama never ceases to surprise.

On September 26, 2017, the Birmingham City Council passed an ordinance that makes it a crime for any entity doing business in the city to discriminate based on race, color, national origin, sex, sexual orientation, gender identity, disability, or familial status. The ordinance passed unanimously and is the first of its kind in Alabama.

In announcing the measure, the City Council took a bit of defiant tone, noting that Birmingham had to act since the state legislature was unwilling.  It remains to be seen if the state legislature will try to take steps to pass legislation prohibiting Birmingham and other cities from passing such ordinances.

The City also created a local human rights commission to process and try to resolve such complaints.  If the matter cannot be resolved, an employee must swear out a complaints in criminal court.  The criminal court has the power to order a fine, but not reinstatement or back pay.

 

On September 20, 2017, the Seventh Circuit Court of Appeals issued a decision that a requested three month medical leave due to a disability was not a reasonable accommodation under the ADA.  Although there is some discussion of the particular facts in the case, much to the delight of management-side attorneys like me, the case goes beyond saying that the leave was not reasonable in this particular circumstance.

Instead the Court noted that the ADA is not a medical leave statute.  The Court held that an accommodation need only be granted under the ADA if it will help the employee work.  Since an employee who needs leave cannot work, then they cannot be considered a qualified individual with a disability.

The Court does note that a brief leave of days or perhaps a few weeks, might, in some circumstances be a reasonable accommodation.  But, and here’s the good part, “a medical leave spanning multiple months does not permit the employee to perform the essential functions of his job. To the contrary, the “[i]nability to work for a multi-month period removes a person from the class protected by the ADA.”

The subject of how long must an employer grant leave to a disabled employee is a common one. Often, it is the source of great frustration for employers.  Although there is still no bright-line test as to just how much leave must be granted, this case certainly seems to limit that time to less than two months for employers within the Seventh Circuit.

Employers should still be cautious as many state and local laws that require reasonable accommodations for disabilities may not be interpreted in the same manner.

If you want to read more, the case is Severson v. Heartland Woodcraft Inc. 2017 U.S. App. LEXIS 18197.

A few weeks ago, we posted that employers could fire Neo-Nazis who participated in the Charlottesville protests.  As we noted, we were just looking at First Amendment rights and that employees may have more protections under state laws.

My partner, Nancy Yaffe, has a written a thoughtful blog post on those state protections that might come into play.  For a more detailed discussions of those protections, please check out her blog post.

On Tuesday, the Office of Management and Budget notified the EEOC that it was delaying a rule finalized last year that would require large employers to report salaries of workers.  The rule was implemented to help combat gender pay inequality.

The rule would require any employer who must file an EEO-1 report, which is any private employer with 100 or more employees or federal contractor with 50 or more employees, to provide the previously required information about the number of its employees broken down by gender, race and ethnicity.  The second part of the rule would require employers to also submit W2 payroll data for its employees as they fit in 12 salary bands.  The actual wages paid per employee does not have to be provided.  However, employers would have to list the number of employees in each salary band and break down those numbers by gender and race/ethnicity.

The rule was to go into effect this year for the reports due in March 2018. However, the OMB has now put on the brakes.

The EEOC, however, wants to make clear that this announcement does not mean that there will be a lack of enforcement in this area.  Law 360 is reporting that the EEOC Chair stressed Wednesday that gender pay inequality was still a “high priority.”

In the meantime, the 2017 EEO-1 online portal is temporarily off-line.  Employers will still have to provide the data required by the first part of the rule and should periodically check with the EEOC to see when the 2017 survey is issued.

The devastation in Texas is breathtakingly sad.  Although the storm has passed, recovery efforts continue.  For many, it will take months and years to recover.

Today I received my first call from a client asking about its obligations towards an employee who will be traveling to Texas to help with the recovery efforts.  Many states do have laws that protect first responders from being disciplined or terminated for missing work while responding to an emergency.

New Jersey, for example, is one such state that has a law that provides that an employer cannot “terminate, dismiss or suspend an employee who fails to report for work at his place of employment because he is serving as a volunteer emergency responder during a state of emergency declared by the President of the United States or the Governor of this State.”

Under the New Jersey law, a volunteer emergency responder is defined as “an active member in good standing of a volunteer fire company, a volunteer member of a duly incorporated first aid, rescue or ambulance squad, or a member of any county or municipal volunteer Office of Emergency Management, provided the member’s official duties include responding to a fire or emergency call.”

In the last few days, President Trump has declared a state of emergency in Texas and Louisiana.  As such any New Jersey volunteer emergency responder who is traveling to aid with the Hurricane Harvey recovery efforts may be entitled to leave.

The leave does not have to be paid.  Employees may be able to use available or vacation days while out on leave, but cannot be forced to use such time.

The bad news for employers is that the law does not provide a limit on the amount of work that can be missed by the employee.  Many other jurisdictions besides New Jersey provide similar protections.  Employers with questions about first responder leave are encouraged to contact employment counsel.

For those wanting to help victims of Hurricane Harvey, Consumer Reports  and the New York Times have written some helpful guidance on avoiding scams, as well as listing some charities that are in the best position to help.

First, let us start by saying that we are saddened by the tragic and violent events that occurred in Charlottesville over the weekend.  Our hearts go out to the families and friends of Heather Heyer,  Lt. H. Jay Cullen, and Berke M.M. Bates.

Second, let us address a question that is appearing on a lot of social media threads — can/should the Neo-Nazis who participated in Saturday’s protest be fired from their jobs?

“Should” they be fired is not really a question we can answer.  That is certainly up to each individual’s employer.

Can they legally be fired?  The short answer is yes.

It appears that many people who were outraged about Saturday’s rally by white supremacists have taken to using online sources to “out” the identities of those present at the rallies.  There is already a report of at least one employer who has terminated one of the individuals identified as being at the rally.

Generally speaking, the First Amendment protects speech from government action. Similarly, its right to free assembly is a right to be free from government interference. It simply does not apply to private employers.

Employees of public employers do have First Amendment rights, but those rights are not unfettered.  Without going into a dissertation on Constitutional law, the case law provides that speech is only protected if they are commenting as a private citizen on a matter of public concern.  See, for example, Pickering v. Board of Education, 391 U.S. 563 (1968).

There certainly is an argument that raising a Nazi salute or chanting derogatory statements about Jews and people of color is not speaking about a matter of public concern.  Even if it is, the Pickering case requires courts to balance the interest of the employee in speaking against the employer’s interest in not undermining its mission.  Courts have held that permitting racist speech of employees causes the public to lose faith in the public employer and thus is not protected.

In short, if any private employer wishes to fire any of the individuals who have been identified as participating in the white supremacist rally, they can legally do so.  Likewise, public employers probably will also be able to do so without running afoul of the First Amendment.

One big caveat:  this is really only a discussion of First Amendment protections.  Some states have laws that might protect employees who engage in off-duty political expression.  Employers are still advised to consult with legal counsel before taking action in cases such as these.

 

A couple of weeks ago we asked whether the federal government would pass a paid family leave law.  Although it is still unclear whether a federal law will pass, it is clear, for now, that there will not  be an expansion of paid family leave in New Jersey.

Governor Christie vetoed legislation that would have expanded paid family leave.  In his veto remarks, Governor Christie complained about the financial impact of the law.

The veto is conditional, meaning if the legislature approved a bill with Christie’s suggested changes, the law would pass.  However, it is clear that the legislature would not make Christies’ suggested changes as they have complained that his changes would gut the law.

In a portentous opinion, Massachusetts’ highest court held that a medical marijuana patient terminated for failing a drug screening could state a claim for disability discrimination against her employer.  Because many states’ medical marijuana laws contain the similar language to that which the court relied on, employers outside of Massachusetts should take note.

The facts are relatively unremarkable.  The plaintiff had told her prospective employer that she had been prescribed medical marijuana to treat her affliction with Crohn’s disease, but that she did not use it daily and would not use it before or during work.  On the evening of her first day of work, the company’s HR representative notified the plaintiff she was terminated for failing the pre-employment drug screening because the company “follow[ed] federal law, not state law.”  The plaintiff sued for, among other things, disability discrimination under state law.

In reversing the trial court’s dismissal of the discrimination claims, the Massachusetts Supreme Judicial Court premised its decision on a provision of the state’s medical marijuana law stating that a qualified person “shall not be . . . denied any right or privilege,” for use of medical marijuana.  Essentially, the Court held that because a waiver of the employer’s policy excluding persons who test positive for marijuana could have been a reasonable accommodation, the employer’s refusal to engage in the interactive process constituted a denial of the plaintiff’s rights not to be fired because of a disability and to require a reasonable accommodation under the state’s anti-discrimination law.

The Massachusetts court was not persuaded by the employer’s argument that its drug testing policy, not her disability, was the basis for the termination.  The Court analogized an employer policy prohibiting marijuana to one prohibiting insulin and explained that reliance on a company policy prohibiting any use of marijuana to terminate an employee whose disability is being treated with marijuana effectively denies such employee the opportunity of a reasonable accommodation.

Although no other high court had previously reached a similar conclusion, few cases have been brought under disability discrimination laws in states whose medical marijuana laws prohibit the denial of rights and privileges to patients.  For example, New Mexico’s law contains such a prohibition, but it only applies to practitioners.  New Jersey, on the other hand, clearly extends the prohibition to patients.

It is also significant that the Court also rejected the employer’s argument that the state’s medical marijuana law did not require “any accommodation of any on-site medical use of marijuana in any place of employment.”  Instead, the Court found that this statutory language implicitly recognized the existence of an accommodation for off-site medical marijuana use.  Again, many states’ medical marijuana laws are worded in a similar manner and are susceptible to a reading that would permit an accommodation that does not require an employer to tolerate on-the-job use.

Of course, because this was a motion to dismiss, the Court recognized that the employer could ultimately prevail on summary judgment by showing that a use accommodation would be an undue hardship.  Nonetheless, given that ninety percent of states have passed some form of medical marijuana law – a fact the Court cited in rejecting arguments that the federal scheduling of the drug demonstrates no recognized medical benefit – employers can bet that this case could inspire similar suits in states with similar statutory language.  Keep an eye on this space, and Fox’s Cannabis Law blog for further developments.

Today’s post comes to us courtesy of Justin Schwam, an associate in our Labor and Employment Group in the Morristown office