Michigan Passes Paid Sick Leave Law

On September 5, 2018, Michigan became the 11th state to enact a mandatory paid sick leave law — the Earned Sick Time Act. The act was a citizen petition-initiated measure that the state legislature approved. Under the act, employees accrue a minimum of one hour of earned sick time for every 30 hours worked. All employees (full-time or part-time) would be entitled to use 72 hours in a year, but whether that time is paid or unpaid depends on the size of the employer. Employees of “small businesses” (employers with fewer than 10 employees) may accrue up to a maximum of 40 hours of paid sick time and 32 hours of unpaid sick time each year unless the employer selects a higher limit. Employees of businesses with 10 or more employees may accrue up to 72 hours of paid sick time per year unless the employer selects a higher limit. Earned sick time carries over from year to year, but the annual maximums still apply. An employer’s paid leave policies that provide leave in at least the same amounts required by the act are sufficient to maintain compliance.

An employee may use earned sick time for his or her own mental or physical illness or condition, medical diagnosis or treatment, preventative medical care, relocation related to domestic violence or sexual assault, participation in criminal proceedings related to domestic violence or sexual assault, and other categories set forth under the act. Employees may also use earned sick time to support a family member for similar reasons.

There are many similarities between Michigan’s Earned Sick Time Act and other paid sick leave laws or intermittent leave under the FMLA, but the act is more administratively burdensome in some ways:

  • Employers can choose how to calculate a “year” under the act using any consecutive, twelve-month period, but employees may use earned sick time in the smallest increment that the employer’s payroll system uses to account for other absences.
  • While an employer may require up to 7-days’ notice for foreseeable leave, notice for unforeseeable leave need only occur “as soon as practicable.”
  • Documentation to support the use of earned sick time can only be required for use of more than 3 days and that documentation is limited to a statement that the time is necessary. It should not include a description of the illness or details of the violence.
  • If an employer requires documentation, it is responsible for paying all out-of-pocket expenses the employee incurs in obtaining the documentation. Further, an employer cannot delay commencement of the leave based on a failure to receive documentation
  • Employers must provide written notice of an employee’s rights under the act.
  • Employers may not retaliate against an employee for engaging in activity protected by the act. Importantly, there is a rebuttable presumption that an employer violated the act if it takes any adverse personnel action against an employee within 90 days after the employee engages in protected activity.

The act officially takes effect in March 2019, unless the employer has employees subject to a collective bargaining agreement (CBA). In that instance, the act applies to employees subject to the CBA as of the date the CBA expires, regardless of any statement that the CBA will continue in full force until a future date or event (such as the execution of a new CBA).

Importantly, if the legislature had not approved the initiative, it would have appeared on the state ballot on November 6, 2018. Thus, there has been some discussion that the legislature passed the act to keep it off the ballot and may amend it in the near future. Stay tuned.

Department of Labor Issues Updated FMLA Forms

On September 4, 2018, the Department of Labor issued new FMLA notices and certification forms. But don’t panic, the change was procedural in nature; no substantive changes were made to the forms.

Under the Paperwork Reduction Act of 1995, the DOL is required to submit its forms for approval to the Federal Office of Management and Budget (OMB) every three years. While the prior forms expired on May 31, 2018, the DOL had renewed them on a temporary basis pending approval by the OMB.

With the OMB’s approval completed, the DOL has issued updated forms reflecting an August 31, 2021 expiration date. Even though, with the exception of the updated expiration date, the newly issued forms are identical to the prior forms, employers should ensure that they are using the most current forms, which are available on the DOL’s website.

What Am I Doing Wrong?? Common FMLA Mistakes

What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the seventeenth in a series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Being unaware of new FMLA interpretations from the U.S. Department of Labor.

While the current version of the FMLA regulations has been in place since 2013, is important to keep up to date on the interpretation of the regulations by the U.S. Department of Labor Wage and Hour Division (“DOL”). This is especially the case now.  After a hiatus of several years, the DOL is again issuing opinion letters on the FMLA regulations. On August 28, 2018, the DOL issued two new advisory opinion FMLA letters.

Whether organ donation is a serious health condition

On August 28, 2018, the DOL published an opinion letter which answers the question, “Does organ-donation surgery…qualify as a ‘serious health condition’ under the FMLA?” In short, the DOL answered: “yes, it can.”

The DOL analyzed this question under a scenario where the donor is in good health before the donation, and chooses to donate the organ solely to improve someone else’s health. Citing the FMLA regulations, the DOL maintained that an organ donation can qualify as an impairment or physical condition that is a serious health condition when it involves either “inpatient care” or “continuing treatment.” Therefore, an organ donor can use FMLA leave for post-operative treatment, even where the organ-donation surgery requires an overnight stay.

To read the DOL’s opinion, see Organ Donation Opinion Letter

“No-fault” attendance policies

In the second letter, the DOL tackled the question of whether an employer’s no-fault attendance policy violates the FMLA where the policy effectively freezes, throughout the duration of an employee’s FMLA leave, the number of attendance points that the employee accrued prior to taking leave. The DOL concluded that such a policy does not violate the FMLA, provided it is applied in a nondiscriminatory manner.

Under the employer’s policy, employees accrue points for tardiness and absences, not including absences stemming from FMLA-protected leave. The points remain on an employee’s record for twelve months, and the employer extends that period for any time the employee spends not in “active service” including FMLA leave and other types of leave. The DOL noted that an employee neither loses a benefit that accrued prior to taking leave nor accrues any additional benefit to which the employee would not otherwise be entitled. The DOL reinforced its long-standing position that such practices do not violate the FMLA, as long as employees on equivalent types of leave receive the same treatment. The DOL noted, however, that if the employer counts equivalent types of leave as “active service” under its no-fault attendance policy, then the employer may be unlawfully discriminating against employees who take FMLA leave.

To read the DOL’s opinion, see No Fault Opinion Letter

The Devil Is in the Detail – FMLA Eligibility and Remote Workers

With the increasing trend of telecommuting employees, it is not uncommon for a company to have small numbers of employees working from remote locations in various states. It is important that employers understand how FMLA eligibility is determined for remote workers.   Some incorrectly believe that a work-at-home employee cannot qualify for FMLA if the home from which they work is not in proximity of 49 other company employees or within 75 miles of a company worksite.

The FMLA regulations state that an eligible employee under the FMLA must, among other things, be “employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite.” 29 C.F.R. § 825.110(a)(3).

The FMLA regulations do not define “worksite.” However, Section 825.111(a)(2) of the regulations, which address how to determine whether 50 employees are employed within 75 miles, states:

An employee’s personal residence is not a worksite in the case of employees, such as salespersons, who travel a sales territory and who generally leave to work and return from work to their personal residence, or employees who work at home, as under the concept of flexiplace or telecommuting.  Rather, their worksite is the office to which they report and from which assignments are made.

As such, a remote employee’s worksite can be a location where they do not physically work.

For example, ABC Company employs 49 workers who are based and work out of its Atlanta, Georgia headquarters. ABC also employs Sally, who works from home in Orlando, Florida. Sally gets her assignments from her manager who works at the company’s Atlanta headquarters. Under the FMLA, Sally’s worksite is Atlanta.

This is one example of the many intricacies of the FMLA regulations. The FMLA also has special rules for employees who have no fixed worksite, such as construction workers. In those situations, the worksite is the site to which the employee is assigned as their home base, from which their work is assigned, or to which they report. The FMLA regulations provide the following example to illustrate this nuance:

[I]f a construction company headquartered in New Jersey opened a construction site in Ohio, and set up a mobile trailer on the construction site as the company’s on-site office, the construction site in Ohio would be the worksite for any employees hired locally who report to the mobile trailer/company office daily for work assignments, etc. If that construction company also sent personnel such as job superintendents, foremen, engineers, an office manager, etc., from New Jersey to the job site in Ohio, those workers sent from New Jersey continue to have the headquarters in New Jersey as their worksite. The workers who have New Jersey as their worksite would not be counted in determining eligibility of employees whose home base is the Ohio worksite, but would be counted in determining eligibility of employees whose home base is New Jersey.

29 C.F.R. § 825.111(a)(2)

The examples above are two of the many intricacies of the FMLA. Jackson Lewis can assist employers ensure that their leave administration process is complaint with both the FMLA and the large body of state leave laws.

Employers Must Have Duties Based Reasons to Support the Assertion that Full-Time Attendance Is an Essential Job Function

Teenagers are not the only ones dissatisfied when their pleas of “why” are met with a “because I said so.” It turns out that courts of appeal do not care for it either.

Careful readers of this space know that the Americans with Disabilities Act (ADA) may require employers to allow modified work schedules when appropriate. An issue that often arises when considering a modified work schedule is whether an employee can perform the essential functions of their job if they are not at work full time.
A recent decision from the federal Sixth Circuit Court of Appeals makes it clear that employers cannot insist that a disabled employee work full time just because the employer says so. In Hostettler v. College of Wooster, 6th Cir., No. 17-3406, July 17, 2018, Heidi Hostettler was fired by her employer, the College of Wooster, while recovering from postpartum depression and separation anxiety after the birth of her child.

Believing that Hostettler was suffering from “one of the worst cases of separation anxiety” that he had seen, Hostettler’s doctor provided a restriction that Hostettler return on a part-time basis only, working a total of two or three days a week. The physician believed this would only last a couple of months.

Hostettler’s supervisor generally agreed to that accommodation but countered that she work 5 half-days per week instead. Hostettler accepted this and returned to work in late May on that schedule. Her performance evaluation, conducted in July 2014, contained no negative feedback, and referred to Hostettler as a “great colleague and a welcome addition to the HR team!” Shortly thereafter, Hostettler submitted an updated medical certification that continued the restriction and estimated that she could return to a full-time schedule in early September. The next day she was fired because, the supervisor argued, the department could not function appropriately unless Hostettler could return to full-time work immediately.

Hostettler sued. The district court granted Wooster’s motion for summary judgment, accepting the college’s assertion that full-time presence was an essential function of the HR Generalist position. According to the District Court, because she could not work full time, she was not qualified.

On appeal, the U.S. Court of Appeals for the Sixth Circuit disagreed and reversed. The Sixth Circuit held that although full-time presence may well be an essential function of some jobs, it is a fact-specific inquiry and depends on the job. Hostettler was able to point to two employees who had received longer periods of medical leave for non-pregnancy conditions and she presented an affidavit from a co-worker that there were no problems in HR resulting from Hostettler’s working part-time and that all the department functions had been fulfilled. This, according to the appeals court, created questions of fact that a jury needed to resolve: “In sum, full-time presence at work is not an essential function of a job simply because an employer says that it is. If it were otherwise, employers could refuse any accommodation that left an employee at work for fewer than 40 hours per week.”
The thoughtful employer will not deny a request for a part-time accommodation unless it can show (and hopefully document) that full time presence requirements are logically tied to some other work-related requirement.

Your Presence Is Required: Employee Unable to Travel to Job Site Was Not “Qualified” Within the Meaning of the ADA

In recent years, particularly with technology making it easier for employees to work remotely, courts have struggled to determine whether onsite attendance is an essential job function under the Americans with Disabilities Act (“ADA”).  This question is often dispositive because only qualified individuals—those who can perform a job’s essential functions with or without a reasonable accommodation—are protected by the ADA.  A federal court in South Carolina recently ruled that an employee who could not get to his worksite for a six-month period could not perform the essential functions of his job and thus his employer did not run afoul of the ADA in terminating his employment.  Dunn v. Faithful+Gould Inc., Case No. 6:15-cv-04382 (June 18, 2018). Read More

Cook County Sick Leave Entitlement Being Taken to the Voters

Although municipalities in suburban Cook County have — as we have previously reported — overwhelmingly opted out of the requirements of the Cook County Earned Sick Leave Ordinance, the County Board of Supervisors has decided, by majority vote, to let the voters weigh in on the issue. The Board cited the recent decisions of Wilmette and Western Springs to reconsider their initial decisions to opt-out of the Ordinance to justify its decision to take the issue directly to voters. In a controversial decision viewed by many as an effort to undermine the avalanche of municipal opt-outs, Cook County voters will see an advisory referendum question relating to the Sick Leave Ordinance on their ballots this fall.  Specifically, voters will be asked to answer the following question:

Shall your municipality match the Cook County earned sick time law which allows for workers to earn up to 40 hours (5 days) of sick time a year to take care of their own health or a family member’s health?

[ ]        Yes

[ ]        No

Although the results of the referendum are not binding, if voters overwhelmingly answer the question in the affirmative – which they are widely expected to do — it will likely pressure local elected officials to revisit their earlier decisions to opt-out of the Ordinance.

If you thought you wouldn’t have to hear much more about the Cook County Sick Leave Ordinance in 2018 and beyond, hold on to your hat. The issue seems far from settled.

You Can’t Always Get What You Want: Employers Don’t Have to Provide an Accommodation Requested by an Employee if There Are Other Reasonable Alternatives

A recent Third Circuit case, Sessoms v. Trs. Of the Univ. of Pa., 2018 U.S. App. LEXIS 16611 (3rd Cir. June 20, 2018), serves as a reminder that while the Americans with Disabilities Act (“ADA”) requires employers to provide reasonable accommodations to disabled employees, it does not obligate an employer to provide the accommodation requested by the employee. An employer may choose among reasonable accommodations as long as the chosen accommodation is effective

Sessoms, a University of Pennsylvania (“Penn”) employee, was out on an approved leave of absence relating to mental and physical disabilities. Prior to returning to work, she requested a part-time schedule (with eventual plans to return full time) and to be transferred to a different supervisor in a “lower-stress department/office.”

While Penn agreed to accommodate Sessoms part-time schedule request, it declined to transfer her to a different supervisor. Despite Penn’s efforts, Sessoms was unwilling to agree to any accommodation that included continuing to report to her current supervisor. As a result, Penn terminated her employment.

In affirming the District Court’s grant of summary judgment in favor of Penn, the Court found that Penn demonstrated that it made good faith efforts in attempting to accommodate Sessoms: her supervisors met with her, considered her accommodation requests, and offered several accommodations, including a part-time work schedule.

In its ruling, the Court noted that “[w]here an employee requests an accommodation in the form of a transfer, she must make a showing that this accommodation is possible, i.e., the existence of an equivalent-level, vacant position for which the employee could qualify. A reasonable accommodation does not entitle an employee to a supervisor ideally suited to their needs.” While Sessoms wanted to transfer to another department or supervisor, she failed to provide any evidence that vacant positions existed to which she could be transferred. (It is well settled that a reasonable accommodation does not include creating a new position for an employee if no vacant position exists for which the employee is qualified.)

The ADA requires an employer to provide a reasonable accommodation. It does not limit an employer to providing only an accommodation requested by an employee, or a more costly or burdensome accommodation, if there are other effective reasonable accommodations. That said, if providing an employee’s preferred accommodation does not create a burden or additional expense, that option should be seriously considered.

As noted by the Equal Employment Opportunity Commission in its Enforcement Guidance, if more than one accommodation is effective, “the preference of the individual with a disability should be given primary consideration. However, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations.”

Employers should ensure that they have a well-documented interactive process. Penn’s ability to demonstrate its good-faith efforts in attempting to accommodate Sessoms was noted by the Court in its ruling.

Jackson Lewis can assist employers engage in the ADA interactive process, as well as help navigate complex FMLA and other leave issues.

Chicago and Cook County Paid Sick Leave: One Year Later

July 1, 2018 marked the one year anniversary of the effective dates of the Chicago and Cook County Earned Sick Leave Ordinances. A year later, more than 80% of the municipalities in Cook County have opted-out of the requirements of the Cook County Earned Sick Leave Ordinance.  However, the opt-out issue is far from settled.  We have recently watched as two municipalities – Wilmette and Western Springs – reconsidered their initial decisions to opt-out of the Cook County Ordinance.  In the case of Wilmette, the Village ultimately voted last month to continue to opt-out of the Ordinance even while deciding to opt-in to the Cook County minimum wage requirements.  On the other hand, in April, Western Springs did an about-face, reversing its prior decision to opt-out of the Cook County Earned Sick Leave Ordinance.  On July 10, the Village of Northbrook decided that it would revisit its earlier decision to opt-out of the Cook County Ordinance at its next board meeting on September 25.  Stay tuned for further developments.

Now that the Chicago and Cook County Ordinances are a year old, it is a good time for employers to confirm that they have either: (1) properly calculated the amount of sick leave their employees are entitled to carry over to the second Accrual Period, or (2) frontloaded the appropriate amount of carryover hours beginning on July 1, 2018 in lieu of calculating the precise amount of carryover hours to which each employee is entitled. As a reminder, a Covered Employee is entitled to carry over half of his or her accrued, unused Earned Sick Leave to the second Accrual Period, up to a maximum of 20 hours.  Further, FMLA-Eligible Covered Employees are entitled to carry over an additional up to 40 hours of accrued, unused Earned Sick Leave to the second Accrual Year for use exclusively for FMLA-qualifying reasons.

Confused yet?

Pending California Legislation Alert! Senate Bill 937 Seeks to Require California Employers to Provide Lactation Facilities in the Workplace

If passed, California Senate Bill 937: Lactation Accommodation, will require employers to provide a lactation room, or location, in close proximity to the employee’s work space, and it must include prescribed features such as access to a sink and refrigerator. SB 937 also would deem denial of reasonable break time or adequate space to express milk a failure to provide a rest period in accordance with state law.

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