Connecticut First to Impose Paid Sick Leave Requirement

Posted on September 5, 2011 by Michael Soltis

Connecticut has become the only state to require employers to provide paid sick leave to  employees. On July 1, 2011, Governor Dannel Malloy signed into law Public Act No. 11-52, An Act Mandating Employers Provide Paid Sick Leave to Employees.   

Beginning January 1, 2012, a covered employer must provide paid sick leave annually to each of its service workers in Connecticut at a rate of one hour of paid sick leave for each 40 hours worked, accrued in one-hour increments, to a maximum of 40 hours per calendar year. For service workers hired after January 1, 2012, the accrual begins on the service worker’s date of employment. The law also bars covered employers from retaliating against any employee for taking sick leave under this law or under the employer’s own paid sick leave policy.

We have analyzed the law through a series of Questions and Answers. The law leaves many questions unanswered. They include the integration of this law with the ADA, the FMLA, the Connecticut FMLA, and Connecticut law prohibiting disability discrimination.

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Feds Need Peripheral Vision Too When Managing Employee Leaves

Posted on December 5, 2010 by Michael Soltis

If it is any comfort to private sector employers, when it comes to managing an employee’s entitlement to time off under a myriad of legal requirements and internal personnel policies, the federal government, as an employer, faces similar challenges. On December 3, the Office of Personnel Management issued final regulations addressing the use of sick leave for exposure to a communicable disease, a new “advanced sick leave” policy, and substitution of sick leave for FMLA to care for a seriously injured or ill covered service member. Twenty pages of discussion precede the two pages of new regulations, which illustrates what all employers have come to know---to state each entitlement is the easy part; to determine how the various laws applicable in a particular situation work together is the real challenge.

The discussion is proof that the most fundamental requirement to being successful in managing employee leaves, to making sure that employees receive their “entitlements” under both internal policies and the ever-increasing number of leave laws, is to have “peripheral vision,” to know all the various laws and policies that may apply in a given situation, to be able to weed out those that do not apply, to administer the leave to satisfy the requirements of those that do, and to defend any legal claim that might arise with confidence and documentation.    

The OPM’s table of the five sources of entitlements for federal employees to care for a family member or covered servicemember illustrates that the federal government, as an employer, is focused on peripheral vision as well. The examples of the interaction between sick leave and FMLA leave in the discussion  apply that vision to situations which private sector employees face regularly.  

So at least on this topic, do both the private sector and the federal government, as an employer, have the same challenges? Well, not quite. The private sector has the additional challenges of state and local leave laws.

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EEOC Continues Its Attack on "Inflexible" Leave Policies

Posted on August 12, 2010 by Michael Soltis

 

The EEOC’s challenge to “inflexible” leave policies continued this week, as the agency announced that it had sued Princeton HealthCare System for failing to reasonably accommodate employees who needed medical leave. According to the EEOC press release, Princeton HealthCare "fires employees" who are not qualified for FMLA leave and refuses to grant leave beyond the 12 weeks allowed by the FMLA. The EEOC stated that Princeton HealthCare does not grant exceptions to these policies for qualified individuals with a disability who need additional leave as a reasonable accommodation. The release states that more than a dozen Princeton HealthCare employees with disabilities who requested a leave of absence as a reasonable accommodation were denied leave and fired. The case has been filed in the U.S. District Court for the District Court of New Jersey.

The Princeton HealthCare case is the latest in a growing line of cases the EEOC has brought in which the agency claims the employer has had an inflexible leave policy in violation of the ADA. In 2009, the EEOC brought a class action suit against an international package delivery company, claiming the company violated the ADA by rejecting requests for medical leave extensions beyond its 12-month leave policy.  Also in 2009, the EEOC settled a lawsuit in which the agency alleged that a national retailer was inflexible in its administration of leave policies for employees with work-related injuries.  The retailer paid $6.2 million (a “record-setting” amount, according to the EEOC) as part of a consent decree.

We have cautioned employers about the risks of having a “leave limits” policy in our Special Report on Excusing Absences as a Reasonable Accommodation under the ADA. Employers with a leave limits policy which does not allow for additional leave for disabled employees as a reasonable accommodation, bear the risk of being the subject of the next EEOC press release.  

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Leave Mavens Now New EEOC Commissioners

Posted on May 7, 2010 by Michael Soltis

Watch for a continued focus on medical leaves at the EEOC since President Obama’s recent recess appointments have extensive backgrounds on leave issues. The EEOC has been challenging employers’ “inflexible” leave policies which, the EEOC alleges, do not appropriately consider the ADA’s reasonable accommodation requirements. 

Newly-sworn-in EEOC Commissioner Chai Feldblum, a former Georgetown University Law Professor has been in the vanguard in drafting and negotiating the Americans with Disabilities Act and the 2009 Americans with Disabilities Act Amendments Act. A significant aspect of the ADA requires employers to provide disabled employees a reasonable accommodation, which could include providing leaves of absence. While at Georgetown, Feldblum was the Co-Director of Workplace Flexibility 2010 , a public policy initiative which advocates for flexible work arrangements, including time off.

Another recently sworn-in EEOC Commissioner is former U.S. Assistant Secretary of Labor Victoria Lipnic, who was Assistant Secretary of Labor for Employment Standards at the DOL from 2002 to 2009. During her tenure, the DOL proposed revised FMLA regulations, evaluated comments on that proposal and issued final revised regulations, which went into effect in January 2009. The FMLA entitles eligible employees to time off from work and these regulations define the parameters of that entitlement.

The appointments of Ms. Feldblum and Ms. Lipnic, with their combined “leave” backgrounds, naturally create anticipation that they will provide insight into the sticky issues that lie at the intersection of the ADA and FMLA. While the EEOC’s guidance on the interaction of these two laws issued in 2000 still has relevance, the ADA Amendments Act and revised FMLA regulations have created additional “interaction” challenges for employers. We look forward to their insight.

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