St. Paul, Minnesota Joins the Paid Sick Leave Patchwork Quilt and Continues Its Spread Into the Interior States

We have been reporting on the growing patchwork of paid sick leave laws now for over 3 years.  The patchwork continues to fill in heavily on the west coast with state laws in both California and Oregon and 10 city ordinances scattered across California, Oregon and Washington.  This summer Los Angeles and San Diego added their own patches to the quilt.  To read more about these new laws, click here  and here

The east coast also contributes heavily to the patchwork, with state laws in Massachusetts, Connecticut, and Vermont,  a plethora of city laws scattered throughout New Jersey, and a handful of other city or county laws in New York, D.C., Maryland, and Pennsylvania.  Puerto Rico rounds out the east coast.    This summer, Minneapolis, Minnesota became the first to stretch the thread away from the coastal states.  To read more about Minneapolis’ law, click here.  It’s law, which takes effect July 1, 2017 opened the door for other interior states and locations to add their own patches.  Chicago quickly joined.  To read more about Chicago’s law, click here.  And this week the city council for St. Paul, Minnesota  unanimously passed its own sick leave ordinance.  Like Minneapolis, it goes into effect on July 1, 2017.  The St. Paul ordinance requires employers to allot employees an hour of earned sick leave for every 30 hours worked.   Unlike the Minneapolis law, St. Paul’s ordinance does not exempt companies with fewer than six employees.

It would be nice if the patches all matched, but each local law has its own definition of who is covered, what it can be used for, and how much must be provided, leaving a mis-matched (and sometimes clashing) pattern of stripes, solids and checks across the nation.    New Jersey is a shining example of this where there are at least 12 city ordinances, but the state legislature has stalled passing a consistent state law.

While employers may cringe at the idea of having to pay employees not to work, the administrative cost of adjusting to each local ordinance and tracking the various accrual rates is often times outweighing the cost of the leave itself.  Indeed, the objection to many of these laws is not so much the paid time off (as many employers already provide some form of paid time off), but the administrative cost associated with complying and the lack of any meaningful control on employee abuse.  As the patchwork continues (and appears to be picking up momentum), employers should make their voices heard at the local, state and national level. A number of states have passed kibosh laws that prohibit municipalities from passing these laws.  Stay tuned, if it is not already on the ballot, it is likely coming to a ballot near you soon.

California Court of Appeal Finds Employer’s Denial of Accommodation to a Nondisabled Employee May Be Evidence of an Associational Disability Discrimination Claim

On August 29, 2016, the California Court of Appeal for the Second Appellate District reversed summary judgment earlier awarded to the employer in Castro-Ramirez v. Dependable Highway Express, Inc. In its reversal, the court found that an employer’s denial of accommodation to a nondisabled employee may be evidence of associational disability discrimination under the Fair Employment and Housing Act (“FEHA”).

The Facts

Plaintiff Luis Castro-Ramirez (“Plaintiff”) began working for Dependable Highway Express (“DHE”) in 2010. At that time, Plaintiff notified DHE that he had a disabled son who required dialysis on a daily basis.  He requested work schedule accommodations that allowed him to administer dialysis to his son in the evenings and was given such a schedule.  Plaintiff’s typical schedule was from 9:00 or 10:00 a.m. until 7:00 or 8:00 p.m.

In March 2013, Plaintiff’s supervisor was promoted to operations manager, and his new supervisor, Boldomero Munoz-Guillen (“Junior”) changed Plaintiff’s work schedule. That same month, Plaintiff complained to the operations manager that Junior had changed his hours, such that he was unable to attend to his son’s daily dialysis needs.

Plaintiff told Junior, “Please, I need to have my job like always. I’ve always had help from everyone except you.”  The next day, Junior assigned Plaintiff to a shift starting at 12:00 p.m., and due to the route Plaintiff’s supervisor assigned to him, he could not get back in time to administer dialysis by 8:00 p.m.  Plaintiff requested the day off or an alternative shift, and reminded Junior that the operations manager had told Junior about Plaintiff’s needs.  Junior laughed, “[Plaintiff’s former supervisor] doesn’t work here anymore.  Now it’s me.” Junior told Plaintiff that if Plaintiff did not handle the route, he would be terminated.  Plaintiff refused, and DHE terminated Plaintiff’s employment.

The Decision

The Court of Appeal noted that Plaintiff had abandoned his claim for failure to provide reasonable accommodation, and thus, declined to decide whether FEHA provided a duty to accommodate associational disability. However, the Court of Appeal explained that the FEHA creates an associational disability discrimination claim.  The Court of Appeal opined that FEHA makes it unlawful to discharge a person from employment based on physical disabilities or other characteristics, which include “a perception that the person. . .is associated with a person who has, or is perceived to have, any of those characteristics.”  Cal. Gov. Code § 12940(a), § 12940(o).

Based on that framework, the Court of Appeal opined that a jury could reasonably find that Plaintiff’s association with his disabled son was a substantial motivating factor in Junior’s decision both to deny an alternative work schedule and to terminate Plaintiff. “[T]hese facts may give rise to the inference that Junior acted proactively to avoid the nuisance plaintiff’s association with his disabled son would cause Junior in the future.”

The Court of Appeal also held that reasonable juror could find Plaintiff’s repeated complaints about the sudden changes to his schedule represented a protected activity, especially given the proximity of time between Plaintiff’s complaints and the termination. The Court of Appeal found Plaintiff did more than simply request an accommodation; he expressed a degree of opposition to the DHE’s failure to provide the altered schedule and thus there is a triable issue of fact as to retaliation.

The Dissent

The Court of Appeal’s dissenting opinion disagreed with the majority’s statement that it declined to decide whether FEHA establishes a separate duty to reasonably accommodate associational disabilities. Rather, the dissent believes the majority did just that.  Effectively, the employer either must provide accommodations to employees associated with disabled persons, or face liability for associational discrimination for failure to provide such accommodations.

***

The Castro-Ramirez v. Dependable Highway Express ruling finds that an employer could be liable for discrimination and retaliation for adverse employment actions substantially based on associational disabilities.  The decision also asserts that employer denial of accommodation requests by employees associated with disabled persons may be evidence of an associational disability claim.  Accordingly, employers should review their policies and practices regarding responding to disability accommodation requests in light of this decision.  Please contact Jackson Lewis with any legal questions about disability accommodation related issues.

Disability and leave management mistakes just got more costly!

With today’s publication of the final guidance and regulations implementing the “Fair Pay and Safe Workplaces” Executive Order (also known as the “Blacklisting” or “Bad Actors” Executive Order), mistakes that violate the FMLA or ADA (along with many other employment laws) could block an employer from lucrative federal contracts or subcontracts.  Federal contractors and those hoping to become federal contractors or subcontractors will soon have to publicly disclose administrative agency decisions, arbitral awards and civil judgments against them.  Violations will now cost more than just the original judgment – they could prevent the employer from obtaining or retaining  a federal contract or subcontract.

As with most things, an ounce of prevention is worth a pound of cure.  Employers are wise to develop practical and effective accommodation and leave management programs to help avoid the issues lurking under every medical restriction or leave request.  Even more important is to develop well-trained managers and HR professionals who are adept at handling the many intricacies of these laws and know when to get outside help before a little issue turns into a reportable violation.

The effective date of the regulations is just two months away, October 25, 2016.  To read more about the regulations, click here.

Illinois Employers Must Provide Child Bereavement Leave

The loss of a child is never easy.  Effective July 29, 2016, Illinois employers with 50 or more employees must provide eligible employees with up to 10 days of unpaid child bereavement leave following the death of a child.  The Illinois Child Bereavement Leave Act supplements the leave options available under the federal Family and Medical Leave Act of 1993 (“FMLA”).  However, employees who have exhausted all available leave under the FMLA may not be entitled to additional leave under the Child Bereavement Leave Act.  Further details regarding the Act can be found at the link below.

http://www.jacksonlewis.com/publication/illinois-law-mandates-unpaid-child-bereavement-leave

What is a Disability? The DOJ’s Final ADAAA Rule is Here.

Today, after a two year wait, the Department of Justice will publish its final rule amending the ADA regulations to incorporate the 2008 statutory changes set forth in the ADAAA, which took effect on January 1, 2009.

The ADAAA, signed into law by President George W. Bush, was Congress’s response to multiple Supreme Court decisions they believed ran afoul of the intent and purpose of the ADA by significantly narrowing the application of the definition of “disability”.  While courts have, since the enactment of the ADAAA, assigned a broad interpretation to the meaning of the term “disability,” the final rule not only clarifies that the term should be interpreted broadly, it also explains that the primary focus in cases brought under the ADA should be whether covered entities have complied with their obligations not to discriminate based on disability versus addressing the question and engaging in extensive analysis of whether an individual’s impairment meets the definition of the disability.

In addition to clarifying and expanding the term “disability,” the final rule provides a non-exhaustive list in defining “major life activities,”and adds rules of construction to be applied when determining whether an impairment substantially limits a major life activity.  The goal again to ensure the ADA is construed broadly in favor of expansive coverage, thereby meeting the original intent of Congress.

The final rule applies to Titles II (nondiscrimination in state and local government services) and III (nondiscrimination by public accommodations and commercial facilities) and becomes effective October 11, 2016.

The language of the final rule can be found here.

Unlike Godot, ADA Leave Guidance Arrives

Since June 2011, when the EEOC suggested it might issue guidance on leave as a reasonable accommodation under the ADA, we have likened the wait to waiting for Godot. See here and here.  After nearly five years of reciting that “it didn’t come today, it might come tomorrow,” on May 9, 2016, the EEOC issued a “resource document” on leave and the ADA. Unlike in Beckett’s play, Godot arrived.

The thirteen page document, in easy-to-read format and sprinkled with twenty examples, collects some of the basic principles governing leave as an accommodation under the ADA.  To that extent, it is a useful resource for new and veteran leave administrators alike.

But some insight one would expect to find in this document is not there. For example, it notes the familiar refrain that an employer may need to provide leave to an employee with a disability even if the employer does not offer leave as a benefit; or the employee is not eligible for leave under the employer’s policy; or the employee has exhausted the leave available under the employer’s policy and the law, e.g. FMLA.  The document stops short of addressing the next obvious next, the most vexing question for employers: how much additional leave does an employer need to provide?  The rote response–unless it is an undue hardship—is unsatisfying.

The maximum leave discussion misses an opportunity as well. The EEOC recites its long held position—an employer must consider modifying its maximum leave policy as an accommodation under the ADA. The Tenth Circuit and a recent Florida district court case have rejected the EEOC’s position. See here. Some discussion of this opposing view would have been valuable.

Finally, in U.S. Airways v. Barnett, the Supreme Court set out the analytical framework for use in every accommodation case. The first step requires the plaintiff to establish that the requested accommodation is reasonable “in the run of cases” before even getting to the undue hardship analysis.  The resource document glosses over this important first step by referencing it in a footnote (5) and stating that all requested accommodations noted in the document are assumed to be reasonable, as that term is defined in U.S. Airways. This is the equivalent of a baserunner starting on second base. Some discussion of requests for additional leave that were not reasonable in the run of cases would have been helpful. Not all requests for additional leave are reasonable in the run of cases, are they?

 

PSL: How Does the Patchwork Grow?

However many patches it takes to make a paid sick leave patchwork, we are there…and adding more. Here are the patches added in 2016, thus far:

Alabama is now a kibosh state, joining about a dozen others that prohibit municipalities from passing a law requiring employers to provide employees with paid or unpaid leave. The Alabama law, HB 174, also bars municipalities from requiring employers to pay employees for any leave required by federal law, e.g., the Family and Medical Leave Act.

Vermont becomes the fifth state to pass a PSL law, joining Connecticut, California, Massachusetts and Oregon. For more information on the Vermont law, click here.

Although California already has a PSL law, Santa Monica patches in with its own. Watch for San Diego to join the list of California PSL cities after its June referendum on PSL. For more information on the Santa Monica law, click here.

Finally, the federal government is working on its first PSL patch. On Labor Day last year, President Obama signed Executive Order 13706, which requires federal contractors to allow their employees to accrue paid sick days. The Department of Labor recently published proposed rules to implement that executive order. For more information on the proposed rules, click here.

There was a time I could recite the list of PSL jurisdictions without any hesitancy. Wth more than 30 PSL jurisdictions now, there is a hesitancy or two to make sure I have them all. National and multi-jurisdiction employers continue to struggle to comply with the varied and sometimes inconsistent provisions of these laws. The struggle is going to continue and, like the patchwork, will grow!

New New York City PSL FAQs; Pittsburgh PSL Law Not Dead Yet

The New York City Department of Consumer Affairs, the agency that enforces New York City’s Earned Sick Time Law, has issued new and updated FAQs concerning that law. For additional information on the Department’s FAQ action, click here.

Meanwhile, Pittsburgh’s Paid Sick Days Act is not dead yet. A Court of Common Pleas struck down the law in December 2015.  Local 32BJ of the Service Employees International Union has appealed the court’s order. The ordinance is not in effect during the union’s challenge, pending the outcome of the appeal. For additional information on the appeal, click here.

Spokane PSL on the Way

Spokane may soon be the first 2016 PSL jurisdiction. Just 11 days into the New Year, its City Council passed a PSL ordinance. (Ordinance No. C35300). The mayor has vowed to veto it but the Council passed the ordinance by a wider margin than needed to override that veto.

The rhythm of the ordinance is very familiar.  For employers with at least 10 employees, employees accrue one hour of PSL per 30 hours of work to an annual maximum of 40 hours. Employees at smaller employers accrue up to 24 hours.

Two aspects of this ordinance got my attention.  PSL may be used for bereavement relating to the death of a family member. Tacoma, WA and Oregon allow use for this reason as well.

The other is a “[w]hereas” clause in the preamble which states that “studies on implementation of paid sick leave policies around the country….show repeatedly that business profitability is affected to a very small degree by implementation of paid sick leave laws.” The clause cites studies of three PSL laws: San Francisco, Connecticut and Washington D.C.  When I read “studies show,” my skepticism level rises.

Most studies of whether PSL has been effective in achieving its goals have been done by advocacy groups who, by definition, support a particular position. In 2014, The Freedom Foundation, a think-tank, studied the PSL laws in four jurisdictions that had been studied–the three listed in the Spokane ordinance as well as Seattle.  The Foundation’s 48 page report, a study of the studies, so to speak, is a must read for anyone interested in evaluating the studies that have been done, regardless of your position on PSL laws. Some of the conclusions from the Foundation report include:

  • “Most employers provide their employees with paid sick leave voluntarily…”
  • “The businesses actually affected by sick leave mandates … experience moderate negative consequences as they seek to comply. Consumers are hit with higher prices. Employees are likely to see reductions in pay, hours or other benefits…[S]ome businesses will still face reduced profitability.”
  • “The promised benefits of mandatory sick leave laws fail to materialize. Turnover remains unaffected and the alleged savings for employers are illusory.”
  • ‘[N]o evidence indicates that paid sick leave regulations noticeably reduces presenteeism,” i.e. the number of employees coming to work sick.

PSL is a fairly new development. I suspect that many more studies will be done in the years to come. Regardless of the outcome of those studies concerning the effectiveness of PSL in achieving its goals, PSL is here to stay.

The Evolving Paid Sick Leave Patchwork: 2016 Update

Another year, more PSL patches. With nearly 30 patches now, and contributions from every level of government, PSL has achieved full-fledged patchwork status.

This year’s PSL highlights include:

  • Oregon becomes the fourth state with PSL, joining CA, CT and MA.
  • Montgomery County, MD becomes the first county to enact a PSL law. With more than 3,000 counties in the United States, this level of government has the potential to make a significant patchwork contribution.
  • Two more New Jersey cities—New Brunswick and Elizabeth—pass PSL ordinances, bringing the total to 11 Garden State PSL cities. The New Jersey Senate has passed a PSL bill which would preempt future municipal PSL ordinances only.
  • PSL remains an East Coast-West Coast phenomenon. The PSL laws west of the Mississippi are in CA, OR and WA. East of the Mississippi, PSL laws are in CT, D.C., MA, NJ, NYC, MD, Philadephia (see note below) and Puerto Rico.
  • Pittsburgh’s hopes to be the first PSL city in the heartland were dashed when a judge ruled that the city did not have authority under Pennsylvania law to enact that requirement. A challenge to Philadelphia’s PSL law might be next.
  • San Diego voters will vote on PSL in a referendum in June. When given the opportunity, voters will approve PSL 100% of the time, I predict.
  • On Labor Day 2015, President Obama signed Executive Order 13706, which requires certain federal contractors to provide employees with up to seven days of PSL. The Secretary of Labor must issue regulations to implement the Order by September 30, 2016.
  • A growing number of large employers require contractors doing business with them to provide PSL to employees.

As we have noted repeatedly, the patchwork challenge has nothing to do with the social question of whether there should or should not be paid sick days. The practical challenge is the proliferation of leave and attendance laws and how they interact with each other. National and multi-jurisdiction employers are struggling to develop paid sick leave policies that meet all of the requirements of all of these laws.

 

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