Today’s post comes to us courtesy of Justin Schwam, an associate in the Labor and Employment Department in Roseland:

60987399 - four young friends drunk and hungover after house party sitting on the couch.

With the trend of local paid sick leave ordinances continuing its progressive sweep in cities across the country, a consistent concern for companies located in the vicinity is whether their operations fall within the local law’s reach.  Does it only apply if the company is physically located in the city?  Or does any employee activity within the city trigger the often onerous recordkeeping obligations?

A few weeks ago, a Minneapolis judge limited the reach of the City’s law slated to go into effect later this year.   Judge Dickstein issued a temporary injunction against the enforcement of its Ordinance against businesses not physically located in the City.  Although the City argued that its exclusive enforcement authority meant that it would not apply the Ordinance against businesses outside the City, the court recognized that such assurances, “however sincere,” did not alter the Ordinance’s plain language.

The court’s analysis of this issue is also notable for its dissection of the City’s argument that its action was a permissible exercise of its police powers to protect the health and welfare of residents.  The court found that the City’s attempt to regulate extraterritorial businesses whose employees “are unlikely (or may never) enter the city while sick” was not a narrowly tailored means of addressing “identifiable harms within the city limits,” such as a rule governing the inspection of extra-territorial cows whose milk was sold within the city.  Because a prime justification for these local ordinances is typically the need to protect residents from the spread of contagion, the court’s refusal to accept policymakers’ assumptions that ill workers would use the sick leave benefit to “protect against potential harm” is significant.

Although the injunction ultimately may be lifted, or the ordinance amended – it’s not scheduled to take effect until July 1, 2017 – employers not located in Minneapolis are breathing a sigh of relief.   For now, employees who occasionally travel to Minneapolis will not be entitled to accrue sick leave under the law.

As local action on this issue will no doubt continue to pick-up steam, since more state governments are looking at measures to prevent municipal action than are moving to enact state-wide measures, it will be interesting to see how cases like this one influence future legal challenges and how future paid sick leave laws are drafted.  We will keep an eye out and report back on any developments.

 

34383097 - veterans day

As the nation prepares to honor the service of men and women in armed forces, Massachusetts employers should be aware of some new obligations.

In July 2016, Massachusetts Governor Charlie Baker signed the HOME Act into law.  The HOME Act is an omnibus bill that, in part, amends M.G.L. 149, Section 52A1/2 . Previously, employers were required to provide any veteran with unpaid leave who desires to participate in Veterans’ Day or Memorial Day exercises, parades or services.

The HOME Act amends that law to provide that employers with 50 or more employees must provide paid leave. There are some limits to the law.  Veterans are permitted to participate in services in their community of residence.  This means employers would not have to grant multiple leave days for veterans to travel outside of their community of residence.  Employers also may deny leave where the employee’s services are essential to public health and safety and the employee is an essential employee to the employer.

The HOME Act also amends the Massachusetts Fair Employment Practices Act to provide that “veteran status” is a protected class.  As Veterans Day approaches, employers should remind supervisors and HR personnel that leave requests may need to be granted.

 

On July 29, 2016, Governor Bruce Ratnor signed the Child Bereavement Act into law.  The Act requires employers with 50 or more employees to provide up to 10 working days of unpaid leave to employees to:

  1. attend the funeral or alternative to a funeral of a child;
  2. make arrangements necessitated by the death of the child; or
  3. grieve the death of the child.

37323216 - single or divorced woman alone missing a boyfriend while swinging on the beach at sunset

Bereavement leave must be completed within 60 days after the date on which the employee receives notice of the death of the child.   Further, employees requiring leave must provide employers with at least 48 hours’ advance notice of the employee’s intention to take bereavement leave, unless providing such notice is not reasonable and practicable.

The law defines employer as it is defined under the Federal Family and Medical Leave Act, which provides that employers are covered employers if they have 50 employees located anywhere in the U.S.  However, the law also defines eligible employees as is defined in the FMLA.  Thus, in order to be eligible for leave employees must have worked at least 12 months for the employer, worked at least 1250 hours in the last 12 months, and work in a location with 50 or more employees within a 75-mile radius.

The law does not define “child” as the FMLA does so employees will be able to take this leave regardless of the age of their children.

Employers may require reasonable documentation to demonstrate the need for leave.  Such documentation can include a death certificate, a published obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or government agency.

If an employee tragically suffers the death of more than one child in a 12-month period, an employee is entitled to up to a total of 6 weeks of bereavement leave during the 12-month period. Although the Act provides for unpaid leave, if an employee has paid leave (including family, medical, sick, annual, personal, or similar leave) from employment, the employee may elect to use paid leave for bereavement leave.

Finally, the law provides that it is not meant to increase the total amount of unpaid leave the employee can take under the FMLA.  This seems to mean that if an employee has exhausted his or her 12 week FMLA entitlement, that he or she will not be permitted to take bereavement leave.

The law was effective immediately so, if employers have not already updated their leave policies, we encourage you to do so.

Employee leave issues can be exceedingly complicated given the interplay between local, state and federal laws.  If you have questions, hopefully, I can help.  I will be giving a webinar through Lorman on June 23rd at 1 pm EST entitled “Legal and Practical Solutions for Accommodating Employees with Serious Illnesses.”

17568955_sI am pleased to be able to offer you a 50% discount off the normal prices.  To register, click the above link and put in the following discount codes.

Discount code: B5513783
Priority code: 15999

Hopefully, you can join me on Thursday.

 

Employee Handbook
Copyright: iqoncept / 123RF Stock Photo

In newly published guidance, the Equal Employment Opportunity Commission (“EEOC”) discusses employer leave policies and the Americans with Disabilities Act (“ADA”). This guidance is significant for a number of reasons.  First, ADA-related developments feature prominently in the EEOC’s most recent enforcement plan. Second, alleged ADA violations continue to rank high on the list of grounds for which the EEOC both receives complaints and ultimately initiates lawsuits. Third, the interaction of ADA and employer leave policies adds another wrinkle to the complex interaction of laws at the federal, state, and local level that require paid or unpaid leave in some fashion.

The Relevant ADA Requirements

Before discussing the EEOC’s guidance, a brief refresher on the ADA “basics” may prove helpful. The ADA prohibits disability-based discrimination in employment and requires covered employers to provide reasonable accommodations to employees with disabilities. ADA regulations define “reasonable accommodation” as “any change in an employee’s work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment accommodation.”

Under this definition, a broad variety of modifications to the work environment could potentially be reasonable accommodations, including leave. Potential accommodations, however, are not reasonable if: 1) they require eliminating an essential function of the job, or 2) they would cause undue hardship to the employer. A determination of undue hardship is a case-by-case analysis of the effect of the proposed accommodation on the employer’s operations or finances.

An employee who requests an accommodation triggers the “interactive process,” which, in broad terms, can be thought of as a dialogue between employer and employee seeking to identify the precise limitations of the disability and the potential reasonable accommodations that could overcome those limits. The employee does not need to use any specific phrasing to request an accommodation.

So how does the ADA affect employer leave policies?

Equal Access to Leave                                                                                            

Employers may not discriminate in employment on the basis of an individual’s disability. In the leave context, this means when an employee with a disability requests leave within the employer’s existing policies, the employer should treat that employee the same as employees without disabilities who request leave. The EEOC highlights this requirement with an example:

Example 2: An employer permits employees to use paid annual leave for any purpose and does not require that they explain how they intend to use it. An employee with a disability requests one day of annual leave and mentions to her supervisor that she is using it to have repairs made to her wheelchair. Even though he has never denied other employees annual leave based on their reason for using it, the supervisor responds, “That’s what sick leave is for,” and requires her to designate the time off as sick leave. This violates the ADA, since the employer has denied the employee’s use of annual leave due to her disability.

Leave as a Reasonable Accommodation

The EEOC’s guidance highlights the role leave can play as a reasonable accommodation. The EEOC’s guidance states that employers are required to consider unpaid leave as a reasonable accommodation to an employee who has a disability, even if:

the employer does not offer leave as an employee benefit;

the employee is not eligible for leave under the employer’s policy; or

the employee has exhausted the leave the employer provides as a benefit (including leave exhausted under a workers’ compensation program, or the FMLA or similar state or local laws).

Employers need not provide unpaid leave as a reasonable accommodation if doing so would create an undue hardship. Moreover, the EEOC cautions employers should not penalize employees who use leave as a reasonable accommodation, as doing so may be considered retaliation that violates the ADA.

Potential Red Flags

The EEOC guidance highlights leave-related policies where employers may run into ADA trouble.

Maximum Leave Policies are common to many employers in various forms. Sometimes these policies are referred to as “no fault” leave policies.  These policies often place caps on the amount of leave employees can use. Limits on Unplanned Absences are another policy tool some employers implement, and these policies typically spell out a set number of unplanned days off an employee is permitted to take before disciplinary action may occur. As the EEOC correctly notes, employees with disabilities aren’t categorically exempt from these policies. Nevertheless, employers may need to adjust these policies as a reasonable accommodation for an employee with a disability, unless the modification would constitute an undue hardship.

100% Healed Policies. Sometimes, employers may require an employee with a disability to be 100% healed (meaning, they have no medical restrictions) before returning to work, such as, for example, after a lengthy medical leave related to surgery. If such an employee is able to perform the essential functions of his or her job with our without reasonable accommodation, requiring that employee to be 100% healed before returning to work may violate the ADA. While there are exceptions – including undue hardship and the direct threat defense – employers maintaining 100% healed policies should tread carefully to ensure ADA compliance.

Bottom Line

In light of the EEOC’s new guidance on this topic, what should employers do?

  • Self-Audit. Review internal policies, procedures, and employee job descriptions for ADA compliance.
  • Train. Ensure that managers, supervisors, and HR professionals, as appropriate, are regularly trained on how to respond to accommodation requests, including leave as a possible accommodation.
  • Document, document, document.  Keep detailed records of discussions with employees that involve the interactive process and any decisions on requests for accommodation (and remember – there are no “magic words” an employee must use when requesting an acommodation).
  • Consult Counsel. Work with knowledgeable counsel early on to ensure ADA compliance and reduce legal exposure.

Yesterday, the New Jersey Senate was set to vote on S799.  However, the bill was pulled from the agenda and no action was taken.  If passed, the bill would require “large” employers, those with 10 or more employees, to provide up to 9 days of paid sick leave per year.  Smaller employers will have to provide 5 days of paid sick leave per year.

Even if the bill passed the Senate and then the Assembly, it is unclear if Governor Christie would sign any paid sick leave law, especially as he has gone on record last week with not wanting to sign bills that he viewed as hostile to businesses in New Jersey.

We will let you know if there is further action on the bill by the Senate.

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10337425_sThe Department of Labor has issued guidance for employers on the FMLA.  The Employer’s Guide to the Family and Medical Leave Act attempts to walk employers through the FMLA process, starting with determining who is a covered employer and going through employer obligations when employees request leave.  The Guide should be a valuable resource for employers.  One of the most helpful items in the guide is the “roadmap.”

I deal with a lot of questions about the FMLA from employers on a daily basis.  In many cases, employers have jumped ahead to trying to grant the leave before first determining eligibility of the employee for leave.  The roadmap is a reminder to go through the process first of determining if the employer is a covered employer and second if the employee is actually eligible for leave. Employers are often confused whether the employee needs leave for a qualifying reason.  However, there are times that employers do not realize that an employee is not eligible for leave because the employee has not worked enough hours or does not work in a covered location.

The FMLA is definitely not easy to understand, so hopefully, this guide will help.  Of course, when in doubt, employers should consult with legal counsel.

The DOL also announced that soon employers will be required to display a new FMLA poster.  The poster has not been issued yet but according to the DOL is not really new information; rather it is supposedly a more “user friendly” version.  We will update you when the poster is issued.

13176052_sWith the flu going around our office in the last few weeks, I have heard lots of talk in the workplace about sick days.  Not complaints that employees who are sick do not have time available as they have quite a bit of PTO time, more complaints from other employees about why sick employees are coming to work.

Today alone, I was afraid when I came back from lunch that the employees might have risen up with pitchforks and torches against one employee who returned to work after being out sick the last few days with the flu, who for his or her own sake will not be named here.

I know mandatory sick leave laws are a headache for employers.  Complying with multiple sick leave laws in a variety of jurisdictions can be very complicated as well as costly for employers. The current iteration of sick leave laws do not realistically address challenges faced by small employers and add layers of complication to the administration of tracking leaves.  However, having a sick leave policy available definitely helps with employee morale issues.

Also, having a pandemic illness policy, i.e., when do you force employees to remain out of work, would certainly help, regardless of whether it is a flu pandemic or some or insidious zombie virus with which you are dealing. If you feel unprepared for a zombie apocalypse, don’t fret.  The CDC has you covered.  See, for example,  Preparedness 101_Zombie Apocalypse.

You cannot be less prepared for a zombie apocalypse than this poor girl whose brothers played an awful trick on her while she was high on anesthesia:

My colleagues will often joke of my mildly-paranoid nature when giving legal advice.  Although not an untrue assessment, such paranoia is not unfounded, and decisions such as the Second Circuit’s decision several days ago in Graziadio v. Culinary Institute of America, No. 15-888-cv (2d Cir. Mar. 17, 2016) reaffirm for me that a healthy level of paranoia can be helpful in this profession.

In Graziadio, the Second Circuit revived several claims brought by a former employee against the Culinary Institute of America (CIA) that it violated the Family and Medical Leave Act (FMLA), the federal law covering unpaid leaves of absence for medical and family care.  In sum, communications broke down between CIA and the Plaintiff after multiple discussions over several months regarding her requests for FMLA protected leave to care for her two children, ultimately resulting in her termination for job abandonment.  The Graziadio decision first serves to reaffirm what many human resources professionals already know; the FMLA’s regulations are technical, unforgiving, and to be followed to the letter in order to avoid a potential FMLA interference and/or retaliation claim.  The court delves deep into the facts presented to conduct a detailed analysis of whether each of CIA’s multiple requests for meetings, medical certifications, responsive communications, and a scheduled return to work date were in accordance with and satisfied the FMLA’s regulations.  Ultimately, the court found CIA’s actions were deficient under the statute, or at least required an expensive trial.

Bell TollsThis broad overview of the FMLA’s technical requirements is scary enough.  However, the decision in Graziadio is particularly notable because, for the first time, the Second Circuit (which oversees all federal courts in New York, Connecticut, and Vermont) explored the contours of individual liability under the FMLA. The Graziadio court found that the FMLA mirrors the Fair Labor Standards Act (FLSA), which in many aspects tends to be one of the broadest statutes around, with respect to individual liability and held that the human resources director involved could be found personally liable under the statute.

The Second Circuit analyzed the “economic reality” factors commonly reviewed in FLSA cases and found that, although traditional hire and fire authority rested with a vice president at CIA, the human resources director had been given effective control over the plaintiff’s employment by overseeing her FMLA leave requests. The human resources director also arguably exercised control over the Plaintiff’s schedule and conditions of employment by controlling the terms of her FMLA leave, handling all leave related communications, and ultimately communicating her termination.  Therefore, the human resources director could be held individually liable given this level of control.

The Graziadio decision is a great refresher on the common pitfalls lurking under the FMLA.  In addition, it is a clear reminder to human resources professionals to proceed with caution, because a mishandled FMLA leave request could put you personally on the hook even if the mistake was an honest one. Taking a step back and thoroughly analyzing any FMLA or other leave request is a necessity.

Moreover, please also remember that in addition to the FMLA, various state and local leave laws may also apply, and these statutes can be much more protective of an employee’s ability to take unpaid (or even paid) leave.  As a result, consultation with a local attorney who specializes in employment law is always advised.

Just in case you missed it, today was the effective date of Elizabeth’s Paid Sick Leave law.  The law applies to all employers in Elizabeth.  Employees are eligible for paid sick leave if they work 80 hours per year in Elizabeth.

Under the law, employers with 10 or more employees must provide up to 40 hours per year of paid sick leave.  If the employer has less than 10 employees, then the employer must provide up to 24 hours of leave.

Leave may be taken for the following reasons:

  • An employee’s own health condition, including doctor’s appointments to diagnose or care for an illness
  • Care of a family member’s health condition, including doctor’s appointments to diagnose or care for an illness
  • Closure of employee’s place of business, employee’s child’s school or day care due to a public health emergency, or to care for a family member who has been quarantined.

41763450_sFamily members are broadly defined and include children (including biological, adopted, foster, step, or child of a civil union partner), parents (including step, foster adoptive and legal guardians), spouses, civil or domestic union partners, grandparents and their spouses or civil or domestic union partners, grandchildren, and siblings.

The law requires that employees be given written notice of the law. Employers must also post a poster advising employees of their rights under the law.

I contacted the Elizabeth Department of Health today and was told that the Department has not yet issued a poster, but that employers should create their own based on the provisions in the Ordinance.

Employers with questions about the contents of the notice or poster should contact employment counsel.