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.

 

Gimme Shelter–and Summary Judgment Again–in the ADA 501(c) “Safe Harbor”

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.

 

 

Trucking Company to Pay $300,000 to Settle EEOC ADA Accommodation Suit

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.

Deaf Plasma Technician’s ADA Accommodation Case Revived

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.

Boat Analyst’s Disability Claim Does Not Hold Water

A Coast Guard analyst unable to maintain regular and predictable attendance due to various debilitating conditions was not entitled to her requested accommodations of telecommuting and a later start time, according to a decision by the U.S. Court of Appeals for the District of Columbia Circuit. Doak v. Johnson, Sec’y US Dep’t of Homeland Security (D.C. Cir. Aug. 18, 2015).  Following her termination for due to her attendance after she had exhausted her FMLA leave, the plaintiff sued under the Rehabilitation Act, the ADA-equivalent applicable to federal employees. The Court affirmed the grant of summary judgment to the Coast Guard.

The plaintiff had various duties relating to a boat building project. The Court held that attendance was an essential function of her position because she needed to meet daily with project managers and staff and collaborate with other work groups. Granting her a later start time was not reasonable since she already had the latest start time and she was unable to arrive by that time regularly and often did not report to work at all, according to eh court.

Allowing her to telecommute was not a reasonable accommodation, the court held, because spontaneous meetings occurred frequently, meeting attendees often reviewed documents simultaneously, and some files could not be accessed remotely. Also, “the pace of work can sometimes be too fast for anything other than on-site presence,” the court noted.

The court also cited the impact of the plaintiff’s frequent and unpredictable absences and late arrivals on her co-workers. The plaintiff’s absences created an undue hardship on co-workers, who were required to “step in and pick up the slack” for her, often with little notice, “which negatively impact[ed] the accomplishment of the agency’s mission,” the court observed.

Train Agent’s Lilly Ledbetter Argument in ADA Demotion Claim Left on Platform

A plaintiff may not salvage her untimely ADA demotion claim by alleging that the statute of limitations began anew with each paycheck pursuant to the Lilly Ledbetter Fair Pay Act, according to the Second Circuit Court of Appeals. Davis v. Bombardier Transportation Holdings (USA) Inc. (Second Circuit, July 25, 2015).

The Lilly Ledbetter Fair Pay Act was passed by Congress to reverse the Supreme Court’s 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., which was a compensation discrimination case. The Supreme Court rejected the plaintiff’s contention that even though a challenge to the discriminatory compensation policy was untimely, each paycheck was a separate act of discrimination.

In Davis, the plaintiff’s employer operates the train that connects New York City and JFK Airport. The plaintiff had been an Air Train Agent (ATA) II, which had all of the duties of an ATA I and the additional responsibility of operating the train manually during emergencies. An ATA II was paid seventy-five cents more than an ATA I. Following her return to work after eye surgery, her employer demoted her to an ATA I position.

The plaintiff filed a charge with the EEOC, alleging that her demotion violated the ADA. The district court granted summary judgment to the employer because the charge was filed more than 300 days after the demotion. On appeal, the plaintiff argued that because she was paid less as an ATA I, the statute of limitations began anew with each paycheck under the Ledbetter law.

In rejecting the Ledbetter argument, the Second Circuit noted that the Ledbetter Act “does not encompass a claim of a discriminatory demotion decision that results in lower wages where…the plaintiff has not offered any proof that the compensation itself was set in a discriminatory manner.”

A critical issue in a Ledbetter claim is whether an employee had reason to know, and assess, an employer’s action, according to the court.  An employee might not learn that someone else is being paid more for some time. However, an employee who is demoted knows immediately of the demotion and the reduced compensation and can assess then whether the employer’s explanation was legitimate or a pretext for unlawful discrimination.

Stroke Victim Wanted More from Flossmoor under ADA

Sometimes it seems an employer has done a lot to accommodate an employee under the ADA, yet the employee claims the employer should have done more.  The Seventh Circuit addressed such a situation in Swanson v. Village of Flossmoor (7th Cir. July 24, 2015).

A police detective in the Village of Flossmoor, IL had two strokes within six weeks. After the first stroke, the detective requested FMLA leave, which the Village granted.   Three weeks later, pursuant to his doctor’s note, he requested to work part-time for a month, which the Village granted.  A few weeks later, he had his second stroke, which left him unable to work at all.

Seven weeks after his second stroke, he applied for FMLA retroactively, which the Village granted.  A week after his FMLA expired, he was released to return to work without restrictions but before he returned, he had another medical incident. He resigned five days later, stating that he was “simply physically unable to return to [his] duties” due to his stroke. He asked to stay on an unpaid leave of absence before retiring, which would allow him to continue to obtain health insurance.  The Village granted his request.  He applied to the Village Pension Board for a disability pension. The Board granted his request.

After his resignation, he filed an ADA charge, alleging that after his first stroke, he had asked for light duty and was told that light duty was not available. He claimed that the police department’s manual gave the department discretion to grant light duty and its failure to discuss that option with him was a failure to engage in the interactive dialogue required by the ADA.

The Seventh Circuit affirmed the lower court’s grant of summary judgment to the Village of Flossmoor. Flossmoor did enough, according to the Court.”[T]he Village’s accommodation (and, frankly, its general treatment of [the plaintiff] in the wake of his medical issues seems quite reasonable here.”

The Evolving Paid Sick Leave Patchwork

Montgomery County, MD and Oregon passed it. California had passed it, then amended it within days after its effective date. In Massachusetts, the Attorney General issued regulations to implement it, and a court said the National Labor Relations Act does not preempt it.  North Carolina, Maryland and New Jersey (and likely others) are considering it.

Employees in Minneapolis and Spokane, WA rallied to demand it. Michigan said no Michigan city can have it. A Michigan group is collecting signatures to have a state-wide referendum on it (it has never been defeated when voters vote on it).

The “it,” of course, is a paid sick leave law.  Four states (CA, CT, MA, OR), the District of Columbia, one county (Montgomery, MD) and another 20 or so municipalities have enacted paid sick leave laws. While there is some consistency in the structure of all of these laws, each has its own unique components. National and multi-jurisdiction employers are struggling to develop a paid sick leave policy that meets all of the requirements of all of these laws.

In March 2013, this blog predicted a paid sick leave mega-trend. As we said then, “the patchwork challenge has nothing to do with the social question of whether there should or should not be paid sick days. The challenge is the proliferation of leave and attendance laws and how they interact with each other.” With only 4 of 50 states and a couple dozen of thousands of counties and municipalities having enacted such a law, we have only just begun.

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