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.
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.
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?
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!
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 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.
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.
More than three years ago, we wrote that “when dealing with ADA claims relating to benefit plans, make sure to plot the coordinates for the ADA’s Section 501(c) ‘safe harbor.’” That harbor protects employers from liability for conduct that would otherwise violate the ADA if it were taken pursuant to a benefit plan so long as the plan is not “a subterfuge” to evade the purposes of the ADA.
A Wisconsin district court has rejected the EEOC’s challenge to an employer’s wellness program, holding that that harbor provided legal protection. EEOC v. Flambeau, Inc. (W.D. WI, Dec. 30, 2015). The EEOC had alleged that Flambeau, Inc. had violated the ADA by conditioning participation in its health insurance plan on an employee’s completion of a “health risk assessment” and a “biometric screening test.”
The Flambeau court relied on the Eleventh Circuit’s 2012 decision in Seff v. Broward Country, FL (11 th Cir. 2012), the only circuit decision that has addressed this issue. The Eleventh Circuit held that the defendant’s $20 bi-weekly surcharge for employees who did not participate in a voluntary wellness program did not violate the ADA because of the safe harbor. The Flambeau court rejected the EEOC’s arguments that Seff was wrongly decided and that the wellness program was a subterfuge to evade the purposes of the ADA.
After staying on the litigation sidelines for years while the popularity of workplace wellness programs skyrocketed, in 2014, the EEOC sued three employers, alleging that each’s wellness program was not “voluntary” due to the size of the penalties for those who did not participate. Because the program was involuntary, the disability related inquiries and medical examinations within the program violated the ADA, according to the EEOC.
The lawsuit in EEOC v. Orion Energy Systems (E.D. WI, filed August 20, 2014) is still pending. There also, the EEOC is arguing that Seff (and likely now Flambeau) was wrongly decided. In EEOC v. Honeywell International, Inc. (D.MN, filed October 27, 2014.), the EEOC sought to enjoin Honeywell from implementing the surcharges and other financial “penalties” in its wellness plan. The court denied the EEOC’s TRO request.
A recently settled lawsuit brought by the EEOC against an Arizona trucking company highlights the importance for companies to always consider unpaid leave as a reasonable accommodation and to ensure their managers and supervisors are trained on all federal, state and local discrimination laws.
In September 2013, the EEOC sued Chemical Transportation, Inc., alleging that its policies violated the ADA by prohibiting employees from working with any medical restriction and by terminating employees if they are unable to return to “full, unrestricted duty” after twelve weeks of leave. The EEOC also alleged that the company unlawfully denied disabled employees’ requests for transfer to open positions for which they were qualified.
On September 22, 2015, after almost two (2) full years of litigation – and likely significant attorneys’ fees and costs – CTI agreed to pay $300,000 and take other affirmative actions to resolve this matter, according to the EEOC’s press release. In addition to the monetary settlement, CTI agreed to hire a neutral consultant to ensure compliance with the ADA, eliminate its policies prohibiting employees from working with medical restrictions or requiring termination after twelve (12) weeks of leave, and institute a system of evaluating managers and supervisors based upon their compliance with EEO laws.
This lawsuit and settlement send a stark message that companies must be vigilant in ensuring their practices and policies do not offend or contradict their duty to engage in the interactive process and provide reasonable accommodations to employees. In particular, this matter demonstrates that compliance with the FMLA is simply not enough and that all supervisors and managers must be fully aware of and trained on their duties under all federal, state, and local discrimination laws with respect to accommodating disabled employees.
Recall the deaf applicant for a lifeguard position who was the subject of our post here. Most memorable there was the comment by the employer’s doctor to the applicant and his mom that “[h]e’s deaf. He can’t be a lifeguard.” The court there resuscitated the lifeguard’s ADA claim.
Now comes a deaf applicant for a plasma center technician (PCT) position. A PCT monitors the blood donor area and process, which includes responding to audible machine alarms, monitoring patients and communicating with them as needed. On rare occasions, blood donors have significant adverse reactions. The plaintiff communicates primarily through lip reading.
After receiving the documentation from a post-offer medical exam, the employer withdrew the offer due to “safety” reasons. The employer had concluded that the applicant would be unable to hear the machines’ audible alarms and could not safely monitor donors because she would not be able to perceive the donor’s need for attention when her back was turned to the donor.
The plaintiff had requested that the employer add “visual or vibrating alerts to the plasmapheresis machines” so that she could see the alarms and to install call buttons so that donors could call her. The employer had denied those requests.
The trial court granted the employer’s motion for summary judgment, agreeing that the applicant was not qualified for the position because she could not perform the essential functions of the PCT job. The U.S. Court of Appeals for the Tenth Circuit reversed and remanded the case to the district court. Osborne v. Baxter Healthcare Corporation d/b/a Biolife Plasma Services, L.P. (10th Cir. August 24, 2015).
The appeals court said a jury should decide whether the employer’s providing the plaintiff’s requested accommodations would have been an undue hardship. The court noted that the fact that the employer would need to contact the machine’s vendor did not establish that the modifications were costly or difficult.
Also, the court held that a jury should decide whether the plaintiff would present a direct threat of harm due to her inability to handle the few donors annually who have significant adverse reactions. The court noted that these situations are “highly improbable and not always serious,” and the record did not establish that plaintiff would be unable to handle them.