New Jersey has amended its Temporary Disability Benefits Law (TDB) to provide job-protected leave during “a period of disability” resulting from the donation of any organ or bone marrow. The new law will take effect on May 20, 2020. Although the Legislature acknowledged that the TDB does not expressly guarantee job security, it decided to amend the law to provide employees job security only when the disability is due to the donation of any organ or bone marrow. Read more here.

The New Jersey Department of Labor and Workforce Development (NJDOL) has issued final regulations on the New Jersey Earned Sick Leave Law (ESLL), ending more than a year’s anticipation following the close of the proposed regulations’ comment period in 2018. Though short on substantive changes, an extensive comment-and-response section provides more guidance to the NJDOL’s interpretation and enforcement of the ESLL. Significantly, it discusses the ESLL’s interplay with collective bargaining agreements (CBAs), existing paid time off (PTO) policies, and employee leave laws. It also explains the permissible use and payment of ESLL. Read more here.

In yesterday’s State of the State, Governor Andrew Cuomo proposed legislation that would require private employers to provide sick leave to their workers. Under his proposal, employers with five to 99 employees would be required to provide at least five days of job-protected paid sick leave per year and employers with 100 or more employees would be required to provide at least 7 days of paid sick leave per year. Small businesses with 4 or fewer employees would be required to provide 5 days of unpaid sick leave.

A similar sick leave law has been in effect for New York City employers since 2014 and for Westchester County employers since April 2019. While we must wait to review the actual text of the legislation, the Governor’s comments suggest that the State law will be more expansive than the New York City and Westchester County laws by requiring employers with 100 or more employees to provide at least 7 paid sick days. In New York City and Westchester County there is no distinction for large employers and all employers may limit employees to using 40 hours in a calendar year.

Stay tuned for further updates.

For guidance on leave management issues, please contact a Jackson Lewis attorney. Register here if you would like to receive information about our workthruIT® Leave & Accommodation Suite. The Leave & Accommodation Suite provides subscribers an expanding array of tools to manage leave and accommodation issues, including electronic access to a state and local leave law database that is developed and updated continually by our Disability, Leave & Health Management attorneys.

“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration.  This is the 28th blog in a series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Denying an employee FMLA leave to care for an adult son or daughter without considering whether that son or daughter is incapable of self-care.

The FMLA allows an employee to take leave to, among other things, care for a child with a serious health condition. But that “child” need not be under the age of 18 to qualify. A qualifying child need only be either under age 18 or age 18 or older and “incapable of self-care because of a mental or physical disability” at the time FMLA leave is to commence. In an earlier blog post, we looked at how an employer can inadvertently mis-step by assuming that an older son or daughter does not qualify. Recent case law shows that there are other wrinkles in these situations of which employers should keep in mind.

In Gibson v. New York State Office of Mental Health, No. 6:17-CV-0608, 2019 U.S. Dist. LEXIS 204021 (N.D.N.Y. Nov. 25, 2019), an employee who worked at a state-run psychiatric center requested FMLA leave to care for her 31-year-old daughter and her 7- and 8-year-old grandsons following the daughter’s surgery. The employer denied the employee’s FMLA request, informing her that she was ineligible for FMLA leave because her daughter was over age 18.

The employee sued in federal court, asserting willful interference with her FMLA rights. The employer moved for summary judgment, arguing in part that there was no proof it had committed a willful violation of the law. However, the court disagreed.

The court reasoned that a jury could believe that the employer denied the employee’s request solely based on her daughter’s age without considering whether the daughter was incapable of self-care. Based on those facts, the court found that the employee had the right to have a jury decide whether the employer’s actions were a willful violation of the law.

What can we learn from this? It is important to carefully evaluate whether an employee qualifies for FMLA leave and to not let preconceived notions interfere in that decision making, particularly when it comes to who qualifies as an eligible family member. With an adult son or daughter’s care at issue, an employer must always evaluate whether that son or daughter is incapable of self-care.

The United States Department of Labor issued an Administrator’s Interpretation that further explains adult son or daughter status, which provides helpful insight, here.

We previously posted about Pittsburgh’s paid sick leave ordinance, the Pittsburgh Paid Sick Days Act (“PSDA”), which the Pennsylvania Supreme Court upheld this past summer after a lengthy legal challenge. Our previous post can be found here.

Under the PSDA, employers with 15+ employees must provide paid sick leave, up to 40 hours per year, accrued at a rate of 1 hour of leave for every 35 hours worked.  Employers with less than 15 employees must also provide paid sick leave at the same accrual rate, up to 24 hours per year.

This week, the City of Pittsburgh announced that the PSDA will take effect on March 15, 2020. Alongside that announcement, the City released guidelines on how the new ordinance will affect employers and employees in Pittsburgh. The guidance is available to download here.

For guidance on leave management issues, please contact a Jackson Lewis attorney. Register here if you would like to receive information about our workthruIT® Leave & Accommodation Suite. The Leave & Accommodation Suite provides subscribers an expanding array of tools to manage leave and accommodation issues, including electronic access to a state and local leave law database that is developed and updated continually by our Disability, Leave & Health Management attorneys.

The City of Duluth, Minnesota’s Earned Sick and Safe Time Ordinance (ESST) will go into effect on January 1, 2020, and employers should be preparing for compliance. The ESST applies to any individual, corporation, partnership, association, nonprofit organization, or group of people that has at least five employees, whether or not all of the employees work in the City. Both full-time and part-time employees are included in this determination. Employers must provide eligible employees in Duluth with one hour of ESST time for every 50 hours worked or frontload 40 hours. You can read more about it here.

The state of city-driven efforts to pass paid sick and safe leave laws in Texas remains in flux. Those monitoring the issue will know the cities of Austin, Dallas, and San Antonio have passed paid sick and safe leave laws, with business coalitions in each city mounting legal challenges. As a result of the uncertainty caused by these legal challenges, the fate of these laws in Texas generally and in the respective cities remains an issue to watch.

Most recently, on November 22, the San Antonio paid sick and safe leave ordinance previously scheduled to go into effect on December 1, was temporarily enjoined as a result of pending litigation. That case will be set for trial to determine whether the ordinance should be enjoined permanently.

The Austin ordinance has been enjoined since November 2018, when the Austin Third Court of Appeals declared the Austin ordinance to be unconstitutional because it was preempted by the Texas Minimum Wage Act.

Dallas remains the only city in Texas to have a paid sick and safe leave law in effect, although that too could change any day as a result of a legal challenge pending in federal court in the Eastern District of Texas. City of Dallas has deferred enforcement of the ordinance, other than for claims of retaliation, until April 1, 2020.

The Texas Supreme Court likely will address the legality of the Austin ordinance in early-2020. Any action by the Texas Supreme Court in that case will have implications for the Dallas and San Antonio ordinances. That is because, as originally drafted, all three ordinances were substantially similar. The city of San Antonio modified its ordinance in October 2019 in several respects, including a change to define paid sick leave as a “benefit” – a move that appears intended to side step the outcome of an adverse determination from the Texas Supreme Court.

Employers with operations or employees in these large Texas cities should continue to closely monitor these issues.

For guidance on leave management issues, please contact a Jackson Lewis attorney. Register here if you would like to receive information about our workthruIT® Leave & Accommodation Suite. The Leave & Accommodation Suite provides subscribers an expanding array of tools to manage leave and accommodation issues, including electronic access to a state and local leave law database that is developed and updated continually by our Disability, Leave & Health Management attorneys.

On July 30, 2019, California Governor Gavin Newsom signed SB 30 into law, changing existing law to permit opposite-sex couples under the age of 62 years old to register as domestic partners. Those who enter into domestic partnerships have the same rights, protections, and benefits as spouses under California law, including the right, if otherwise eligible, to use sick time, take protected leave pursuant to the California Family Rights Act, or receive Paid Family Leave benefits from the State, in order to care for a spouse with a qualifying health issue, among other rights.

Existing law within the California Family Code section 297 provided, among other requirements, that a domestic partnership could be entered into between two individuals who were either: (1) members of the same sex; or (2) if members of the opposite sex, at least one of the two individuals were over 62 years old and meet the eligibility criteria for certain federal benefits under the Social Security Act.

Under the new law, which will be effective on January 1, 2020, California Family Code section 297 will allow any two adults to enter into a domestic partnership if they are single, at least 18 years old, not related by blood in a way that would prevent them from being married to each other, and capable of consenting to the domestic partnership. This will allow individuals who did not previously qualify for domestic partnerships to enter into them and receive the benefits provided to spouses and domestic partners within the state of California.

SB 30 also includes a provision within California Family Code section 299.2 that recognizes as a valid domestic partnership the legal union of any two persons, other than a marriage, that was validly formed in another jurisdiction and that is substantially equivalent to a California domestic partnership. California’s prior law only recognized such unions if entered into between two persons of the same sex.

Jackson Lewis will continue to continue to monitor developments relating new California laws. Please contact the Jackson Lewis attorney with whom you usually work, if you have any questions about SB 30 or how it will impact your workforce or workplace policies.

The Seventh Circuit joins the Eighth, Ninth and Tenth Circuits in holding that such a refusal would not violate the Americans with Disabilities Act. In Shell v. Burlington Northern Santa Fe Railway Company, No. 19-1030, the appellate court addressed the certified question “whether the ADA’s regarded-as provision encompasses conduct motivated by the likelihood that an employee will develop a future disability within the scope of the ADA.”

Shell had applied to work in a safety-sensitive position for BNSF and received a conditional offer of employment, subject to him passing a medical evaluation. BNSF’s chief medical officer determined that at 5’10” and 331 pounds with a body-mass index of 47.5, Shell was not medical qualified for the job. Employees in safety-sensitive positions are required to have a BMO of less than 40.

Shell sued, claiming that BNSF’s refusal to hire him constituted discrimination on the basis of a perceived disability in violation of the ADA.

Looking to the statutory language of the ADA, the court held that the ADA’s “regarded as” prong does not cover a situation where an employer views an applicant as at risk for developing a qualifying impairment in the future. The ADA’s “regarded as” prong defines “disability” as “being regarded as having [a physical or mental impairment.” (Emphasis added). As such, the text plainly encompasses only current impairments, not future ones. “Having” means presently and continuously.

Shell did not base his disability claim on his obesity, as a recent Seventh Circuit opinion foreclosed that possibility. In Richardson v. Chicago Transit Authority, 926 F.3d 881 (7th Cir. 2019), the court of appeals joined other circuits holding that obesity alone is not a physical impairment under the ADA unless accompanied by evidence that the obesity is caused by an underlying physiological disorder or condition. Shell instead based his disability claim on those medical conditions that BNSF feared he would develop – sleep apnea, diabetes, and heart disease – which undisputedly qualify as impairments under the statute. But Shell did not have those impairments at the time he applied to work for BNSF, nor was there any evidence that the company perceived him to currently have those impairments.

The Seventh Circuit agreed with the Eight Circuit: the plain language of the ADA prohibits actions based on an existing impairment or the perception of an existing impairment, but does not prohibit discrimination based on a perception that a physical characteristic – as opposed to a physical impairment – may eventually lead to a physical impairment under the Act. With only proof that BNSF refused to hire him because of a fear that he would one day development an impairment, Shell could not establish that the company regarded him as having a disability, or that he was otherwise disabled.

“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration.  This is the 27th blog in this series, which digs into the FMLA regulations and related issues to address discrete mis-steps that can result in legal liability.

Filling an employee’s position while on FMLA leave even when it appears that the employee might not return to work.

Does an employee in need of a transfer as an ADA accommodation get to fill the position of another employee on FMLA leave?

According to a Mississippi federal district court, the answer is “no.” In Maxwell v. Wash. Cty., Miss., No. 4:18-CV-154, 2019 U.S. Dist. LEXIS 170065 (N.D. Miss. Oct. 1, 2019), an employee was on continuous FMLA leave for 12 weeks after exhausting all company-paid sick leave. The employer had some reason to believe that the FMLA employee would not be coming back to work because the employee failed to purchase personal devices that would enable him to perform his job.

Meanwhile, another employee who could no longer perform his job functions because of a disability requested a transfer to the FMLA employee’s position as an ADA reasonable accommodation. The employer refused the transfer request. While transfer to a vacant position may be a reasonable accommodation for an employee’s disability, the court concluded that a position is not “vacant” if the vacancy is created because another employee is on FMLA leave. The court found that the employer did not violate the ADA by refusing to transfer the ADA employee to the FMLA employee’s position—even though it appeared that the FMLA employee might not return to work. The court implied that if the employer had transferred the ADA employee, it would have violated the FMLA employee’s rights under the FMLA. The court reasoned that the FMLA employee’s position could only be considered “vacant” if the employer knew for certain that the employee was not going to return from leave.

This case addresses the unique situation of an employer’s FMLA obligations running up against ADA accommodation requests. This case illustrates that an employer can potentially violate the FMLA by filling the position of an employee on FMLA leave even if the employer has some belief that the employee will not return to work after FMLA leave. What might be a reasonable alternative? Risk is likely reduced by placing the ADA employee into the FMLA employee’s position on a temporary basis until the FMLA employee either returns from leave, or the employer is certain that the FMLA employee is not returning.