Poster Released for the Westchester County Earned Sick Leave Law

Westchester County has released a poster for the Westchester County Earned Sick Leave Law (“WCESLL”).  By July 10, 2019, all employers covered by the law must post the poster in English, Spanish and any other language deemed appropriate by the County of Westchester, in a conspicuous location. To date, Westchester County has only released the poster in English.

Employers should have already started providing eligible new hires with a copy of the law and written notice, which is intended to explain how the law applies to them. Employers have until July 10, 2019 to provide a copy of the law and written notice to eligible current employees. Westchester County recently published a revised model notice.

For more information about WCESLL, please see our blogs Model Notice of Employee Rights Released for the Westchester County Earned Sick Leave Law and What Employers Can Do Right Now To Prepare For Westchester County’s Earned Sick Leave Law.

Please contact Arin Liebman, Susan Corcoran or the Jackson Lewis attorney with whom your regularly work with any questions related to the Westchester County Earned Sick Leave Law.

Plaintiff With PTSD Not Disabled Under The ADA, Sixth Circuit Rules

The Sixth Circuit’s ruling in Tinsley v. Caterpillar Fin. Servs., Corp., No. 18-5303 (6th Cir. Mar. 20, 2019) is a good reminder that not all impairments rise to the level of a “disability” within the meaning of the Americans with Disabilities Act (“ADA”).  In addition to showing a physical or mental impairment, ADA plaintiffs also must show that the impairment “substantially limits one or more major life activities” to have a disability under the ADA.

Prior to the ADA Amendments Act of 2008 (“ADAAA”), courts frequently dismissed ADA claims on summary judgment after concluding that the plaintiff failed to show that her impairment substantially limited a major life activity.  The ADAAA, with a stated purpose of broadening the scope of protection available under the ADA, certainly has reduced the number of such holdings.  But, as illustrated by the Sixth Circuit’s decision in Tinsley, while the ADAAA may have lowered the bar, a showing of substantial limitation in a major life activity is still required.

Tinsley worked for Caterpillar for 18 years.  In 2013, she was given a new role working for a new supervisor.  In 2015, Tinsley began complaining about her new role—focusing her complaints on her supervisor and the alleged hostile environment created by his management practices.  At the recommendation of her doctor, Tinsley took medical leave from September to October 2015.  In October 2015, she returned to work with a doctor’s note, which contained her PTSD diagnosis.  The doctor’s note provided that she could return to work without restrictions, but recommended that she be moved to a different work environment under a different manager because of her PTSD.  Instead of reassigning her to a different manager, the company approved her for additional medical leave.

After returning to work at the end of her approved leave, Tinsley requested additional medical leave and again requested a new supervisor.  Caterpillar denied these requests.  Tinsley resigned and filed suit alleging that Caterpillar violated the ADA by not providing her with a reasonable accommodation.

The Sixth Circuit affirmed summary judgment for Caterpillar—ruling that Tinsley, despite her PTSD diagnosis, was not disabled for purposes of the ADA because she was not substantially limited in a major life activity.  The only major life activity in which Tinsley argued she was substantially limited was the major life activity of “work.”  The Sixth Circuit explained that “a plaintiff who asserts that her impairment substantially limits the major life activity of ‘working’ is . . . required to show that her impairment limits her ability to ‘perform a class of jobs or broad range of jobs.’”  The Court held Tinsley failed to make this showing: “Although Tinsley has a disability—PTSD—she has not demonstrated that her disability ‘substantially limits’ her from ‘work,’ as that term is understood vis-à-vis the ADA.”

Takeaway

The ADAAA provides that prior to its passage, courts interpreted the terms “substantially limits” and “major life activity” too narrowly, and conveys that the “question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.”  However, as exemplified by Tinsley and other post-ADAAA cases, instances remain where an impairment does not substantially limit a major life activity, and employers should be mindful of this when defending against ADA claims.

Kentucky Adopts Pregnant Workers Act

Last week Governor Bevin signed Senate Bill 18, the Kentucky Pregnant Workers Act. The Act amends the Kentucky Civil Rights Act (KCRA) and applies to employers with 15 or more employees within the state in each of twenty (20) or more calendar weeks in the current or preceding calendar year, as well as any agent of the employer. The new law requires employers to provide reasonable accommodations to employees who are limited due to pregnancy, childbirth, and related medical conditions, unless it would impose an undue hardship on the employer to do so. The law includes lactation and the need to express breastmilk for a nursing child as a related medical condition that must be reasonably accommodated absent undue hardship.

The law provides the following examples of reasonable accommodations an employer may have to provide to an employee who is limited due to her pregnancy, childbirth, or related medical condition:

  • More frequent or longer breaks
  • Time off to recover from childbirth
  • Acquisition or modification of equipment
  • Appropriate seating
  • Temporary transfer to a different job
  • Modified schedules
  • Light duty
  • Private space to express breastmilk other than a bathroom

In determining whether an undue hardship exists, an employer must consider, among other things, the duration of the requested accommodation and whether the employer has a policy of providing, has provided in the past, or is currently providing similar accommodations to other employees due to any reason. If such a policy or practice exists, then a rebuttable presumption is created that the accommodation does not impose an undue hardship on the employer. This rebuttable presumption is sure to cause chaos for a while, as the statute is very broadly worded.

The new law also provides that an employee shall not be required to take leave from work if another reasonable accommodation can be provided. The law expressly requires the employer and employee to engage in a timely, good faith, and interactive process to determine effective reasonable accommodations.

The statute becomes effective June 27, 2019. By June 27, employers must post a notice of the new law. In addition, employers must begin providing notice to new employees upon commencement of employment of their right to be free from discrimination based on pregnancy, childbirth, and related medical conditions, and their right to be reasonably accommodated for such conditions. By July 27, 2019, employers must provide similar written notice to current employees.

As a Kentucky employer, you may be asking yourself, does the Kentucky Pregnant Workers Act really require me to do something different from what I’m already doing under the various other laws and court decisions protecting pregnant employees? The answer is yes. Kentucky’s new law expands the scope and breadth of what must be provided. It requires employers to accommodate employees who are limited –not just disabled under the ADAAA or KCRA, or unable to perform an essential function of their job due to serious health condition under the FMLA. That’s a big difference. What does it mean to be “limited?” Who decides whether a pregnant employee is “limited?” In addition, employers covered by the FLSA are only required to provide non-exempt employees with lactation breaks (subject to an undue hardship defense for smaller employers) and a private space other than a bathroom to express breastmilk for up to one year. However, the Kentucky statute also applies to exempt employees and does not place any limit on how long an employer is required to accommodate a nursing mother.

If you have any questions regarding the new Kentucky law or need assistance updating your handbook policies and preparing the required notices, please contact the Jackson Lewis attorney with whom you regularly work.

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 22nd blog in this series, which digs into the FMLA regulations to address discrete mis-steps that can result in legal liability.

Not taking into account the interplay of the federal FMLA and “state FMLA” laws.

This post takes on a bit of a different twist by expanding beyond the federal FMLA. A common mistake employers can make in FMLA leave management is not taking into account “state FMLA” leave laws that might provide different or additional rights than the federal FMLA.

Employers can unintentionally overlook state FMLA leave laws, particularly if an employer has remote workers or small numbers of employees across multiple “state FMLA” jurisdictions.

The nature of these laws vary, some adding additional family members to the definition of a covered family member, some setting lower employee thresholds for leave eligibility, some providing for only additional family leave rights, and some mirroring the federal FMLA more closely but providing leave over a longer period of time.

Currently, the following states have “state FMLA” leave laws:

  • California
  • Colorado
  • Connecticut
  • District of Columbia
  • Hawaii
  • Maine
  • New Jersey
  • Oregon
  • Rhode Island
  • Vermont
  • Wisconsin

Additionally, the Miami-Dade County Family Leave Law in Florida requires the same leave as Federal FMLA for Miami-Dade County employees, with the addition of leave to care for a grandparent with a serious health condition on the same terms and conditions as leave under the FMLA to care for a parent with a serious health condition.

In jurisdictions with state FMLA leave laws, employers should consider comparing the state law with the federal FMLA to determine any additional rights to which employees may be entitled. These laws also typically have their own notice requirements.  In some states, a state-specific policy may be appropriate, or required. Overlooking these details could result in liability under state law.

 

Model Notice of Employee Rights Released for the Westchester County Earned Sick Leave Law

Westchester County has released a model Notice of Employee Rights for the Westchester County Earned Sick Leave Law (“WCESLL”), effective April 10, 2019.

According to FAQ’s released simultaneously, starting on April 10, 2019, employers must begin providing eligible new hires with a copy of the law and written notice, which is intended to explain how the law applies to them.  Employers have until July 10, 2019 to provide copy of the law and written notice to eligible current employees.

The Notice confirms that any employee who works 80 hours or more in a calendar year in Westchester County is eligible to accrue sick leave under the WCESLL.  Starting on July 10, 2019, all eligible employees who work for companies with five or more employees are entitled to start accruing one (1) hour of paid  sick leave for every thirty (30) hours worked up to 40 hours of sick leave in a year.  Eligible employees who work for companies with less than five employees are entitled to accrue up to 40 hours of unpaid sick leave in a year.  Employers must allow eligible employees to use sick leave for all the reasons outlined in the WCESLL, not just absences due to an employee’s own illness.

The WCESLL also requires that employers post a poster in English, Spanish and any other language deemed appropriate by the County of Westchester, in a conspicuous location.  The County has not released a model posting to date.

For more information about WCESLL, please see our blog What Employers Can Do Right Now To Prepare For Westchester County’s Earned Sick Leave.

Please contact Arin LiebmanSusan Corcoran or the Jackson Lewis attorney with whom your regularly work with any questions related to the Westchester County Earned Sick Leave Law.

Fourth Circuit Reaffirms That Regular, Reliable Attendance Is Essential Function Of Most Jobs

The Fourth Circuit has reaffirmed its position that regular and reliable attendance is an essential function of most jobs.  The Court held that an employer did not violate the Rehabilitation Act by taking adverse action against an employee because of her attendance issues—even though they were caused by her mental illness.  Hannah P. v. Coats, No. 17-1943 (4th Cir. Feb. 19, 2019).

While the disability discrimination claims in Coats arose under the Rehabilitation Act, the same analysis would apply under the Americans with Disabilities Act.  The Fourth Circuit’s thorough opinion offers helpful guidance for employers attempting to balance their need for reliable attendance with their obligations under federal discrimination laws.

Background

Hannah was hired by the Office of the Director of National Intelligence (“DNI”) for a five-year term in March 2011.  Shortly after being hired, she was diagnosed with depression.  Hannah immediately informed her supervisors of her diagnosis, but did not request an accommodation at that time.  By March 2015, Hannah’s co-workers and supervisors observed that her attendance was becoming erratic—including days where Hannah would come to work extremely late or would be unreachable for hours.

On March 19, 2015, Hannah’s supervisors met with her to directly address her attendance issues.  Together with Hannah, they developed a plan that required Hannah to arrive at work by 10 AM and to provide advance notice if she was going to be absent or late.  Despite the plan, Hannah continued to arrive late or miss work without advance notice.  On April 9, 2015, Hannah’s supervisors informed her that the plan was not working, and they referred her to the Employee Assistance Program (“EAP”).  Despite Hannah’s participation in EAP, her attendance problems persisted. Hannah requested four weeks of medical leave based on the recommendation of her psychiatrist.  Hannah’s leave request, after being withdrawn and renewed, was ultimately approved after a two-week delay.

Before taking her medical leave, Hannah applied for several permanent positions with DNI.  An interview panel recommended her for one position.  However, she was not selected after DNI’s Chief Management Officer recommended that she not be selected because her performance was “not consistent with a potentially good employee.”  All of Hannah’s applications for a permanent position were rejected, and Hannah’s employment ended in March 2016 at the end of her five-year term.

Among other claims, Hannah asserted that DNI violated the Rehabilitation Act by (1) failing to accommodate her depression; (2) requiring her to undergo a medical examination; and (3) refusing to hire her for a permanent position.

Fourth Circuit Decision

The Fourth Circuit affirmed summary judgment for the employer on Hannah’s Rehabilitation Act claims.  However, Chief Judge Gregory wrote a separate opinion in which he dissented as to Hannah’s Rehabilitation Act claims.

The Court held that DNI provided Hannah with a reasonable accommodation by working with her to develop an attendance plan.  When Hannah’s attendance issues continued, Hannah’s supervisors attempted a new accommodation—referring Hannah to EAP.  Hannah argued that DNI failed to accommodate her by improperly rescinding the attendance plan accommodation and unilaterally sending her to EAP counseling.  The Court rejected this argument, explaining that the employer “has the ultimate discretion to choose between effective accommodations” and noting that Hannah’s supervisors only acted unilaterally when the attendance plan accommodation did not work.  The Court also rejected Hannah’s argument that her request for medical leave was improperly delayed.  The Court explained that the delay was less than a month, and Hannah’s supervisors were actively considering her request during that time.

The Fourth Circuit also rejected Hannah’s claim that the EAP counseling to which she was referred constituted a prohibited medical examination.  As a threshold matter, the Court noted that EAP’s policies make clear that EAP is intended to be used as a voluntary counseling service, and not as a mandatory medical examination that would violate the Rehabilitation Act.  Even if EAP was a mandatory medical examination under the facts of this case, the Fourth Circuit held the referral to EAP was not unlawful because it was “job-related and consistent with business necessity.”

Finally, the Fourth Circuit held that DNI did not violate the Rehabilitation Act by failing to select Hannah for a permanent position because of her attendance issues.  The Court explained: “Hannah might have been exceptionally talented and substantively good at her job, but . . . in addition to possessing the skills necessary to perform the job in question, an employee must be willing and able to demonstrate these skills by coming to work on a regular basis.”  The Court rejected Hannah’s argument that because her disability was the cause of her attendance issues, her employer could not deny her a job opportunity on that basis: “We have no doubt that Hannah’s struggle with depression was the cause of her attendance issues, and we are sympathetic to the toll this condition took on a highly talented employee.  However, [DNI] was nevertheless permitted to take Hannah’s attendance issues into account in its decision whether to hire her” for a permanent position.

Takeaway

Hannah reiterates the Fourth Circuit’s position that regular, reliable attendance is an essential function of most jobs.  However, the lengths to which an employer must go to provide an accommodation to an employee with disability-related attendance problems remains a fact-intensive inquiry.

The FMLA, ADA and Overseas Employees

In the global economy, it is not unusual for U.S. multinational companies to have employees working overseas.  Overseas employment arrangements require employers to navigate a variety of complex legal issues – some of them leave related. For example, what happens if an overseas employee has a medical condition that causes them to miss work?

The Family and Medical Leave Act and Americans with Disabilities Act treat employees working in a foreign country differently.

Section 29 CFR 825.105(b) of the FMLA regulations states that “the FMLA applies only to employees who are employed within any State of the United States, the District of Columbia or any Territory or possession of the United States.” Territories or possessions of the United States include Puerto Rico, the Virgin Islands, the Outer Continental Shelf lands, American Samoa, Guam, Wake Island, Eniwetok Atoll, Kwajalein Atoll and Johnston Island. Employees who are employed outside these areas are not covered by the FMLA and, accordingly, not counted for purposes of determining employer coverage or employee eligibility.

The ADA, however, may apply to overseas employees.  To be covered under the ADA, an employer must employ 15 employees.  The ADA applies to U.S. employees employed by covered employers in foreign countries, provided the employee is: 1) a U.S. citizen and 2) employed by a U.S. company or a foreign company controlled by an employer of American nationality.

It should be noted that the ADA does not require U.S. employers to violate the laws of a foreign country where the workplace is located in order to comply with the ADA.

Global employers should remember that some U.S. legal protections travel with employees who work overseas.  Given the complexity of these issues, employers should consider engaging legal counsel when dealing with leave issues involving employees who work outside of the U.S.

What Employers Can Do Right Now To Prepare For Westchester County’s Earned Sick Leave Law

Companies should begin preparing now for the new Westchester County Earned Sick Leave Law (“WCESLL”), which becomes effective on April 10, 2019. Here are five steps to get employers started.

1. Determine Whether Your Company Must Provide Employees More Paid Time Or Expand The Reasons Employees Can Use Paid Time Benefits.

Employers should confirm they provide eligible employees with the minimum amount of leave they are entitled to under the WCESLL. At the start of employment, or on July 9, 2019, whichever is later, all eligible employees, except domestic workers, are entitled to accrue a minimum of one hour of sick leave for every 30 hours worked, up to 40 hours per year. Rather than calculate the accrual of earned sick leave, employers can provide eligible employees with a combined 40 hours or more of sick leave and other paid time off (“PTO”) benefits per year. Eligible employees who work for companies with five or more employees are entitled to paid sick leave and eligible employees who work for companies with less than five employees are entitled to unpaid sick leave. Employers must allow eligible employees to use sick leave for all the reasons outlined in the WCESLL, not just absences due to an employee’s own illness. Unionized employers must review their collective bargaining agreements and the specific WCESLL rules that apply to collective bargaining agreements.

2. Develop A Process To Track Employees Who Only Work In Westchester On An Occasional Basis.

Companies may have to comply with the WCESLL even if their employees are not “based” in Westchester. Absent clarifying regulations or guidance, it appears any employee who works 80 hours or more in a calendar year in Westchester County is eligible for sick leave. Thus, employees who only work in Westchester on an occasional basis (e.g., sales calls or covering shifts) may become eligible for sick leave as soon as they reach the 80-hour threshold. Tracking such time will be a considerable challenge for many if not most employers.

3. Update Your Sick Leave And Paid Time Policies And Procedures.

Employers should update their sick leave and paid time policies to ensure they satisfy the minimum standards under the WCESLL. For example, employers must allow employees to carry over up to 40 hours of unused accrued sick leave into the next year. Additionally, an employer can only delay an employee’s ability to use earned sick leave until they have worked for the employer for 90 days. Employers also may have to modify the process employees follow or documentation employees submit to support sick leave requests. Employers with NYC operations should keep in mind that the WCESLL is not identical to New York City’s Earned Sick and Safe Time Law; for example, the reasons for leave under the WCESLL are not as expansive as NYC law.

4. Prepare For The Notice And Posting Requirements.

On the start of employment or by July 9, 2019, whichever is later, employers must give employees a copy of the WCESLL and written notice of how the law applies to them. Employers must also display a copy of the WCESLL and a poster in English, Spanish and any other language deemed appropriate by the County of Westchester, in a conspicuous location. A carefully drafted written policy describing how employees can request to use sick leave is recommended and will go a long way to ensure employees understand their rights and obligations under this law.

5. Coordinate WCESLL Benefits With FMLA, NYPFL And Voluntary Leave Benefits.

In some instances, time covered under the WCESLL will overlap with leave provided under the federal Family and Medical Leave Act (FMLA), the New York Paid Family Leave Act (NYPFL), and/or voluntary paid or unpaid leave benefits. Employers should confirm that they are coordinating these leaves properly to ensure time covered under the WCESLL is not being counted improperly during such leaves while, conversely, avoiding any unnecessary “stacking” of such leaves.

Please contact Arin Liebman, Susan Corcoran, Frank Alvarez or the Jackson Lewis attorney with whom your regularly work to discuss ways your organization can prepare for the Westchester County Earned Sick Leave Law given your company’s unique operational needs.

Pittsburgh Now Requires Pregnancy Accommodations for Employees and Partners

In major news for employers in Pittsburgh, the City Council just unanimously passed a new ordinance greatly expanding protections for pregnant employees and imposing several new requirements on private employers, much like those under the federal Pregnancy Discrimination Act, Americans with Disabilities Act, and related EEOC guidance.

The ordinance also makes Pittsburgh one of the first cities nationwide to offer protections for partners of pregnant women—which is defined broadly to mean a person of any gender with whom a pregnant woman has a relationship of mutual emotional and/or physical support (and does not require a marital or domestic relationship). Committee members called the legislation “trailblazing” and “leading the way nationwide.”

Section 659.02 of Article V, Chapter 659 of the Pittsburgh City Code, the City Fair Practices Provisions, already treats pregnancy discrimination as a form of sex discrimination—forbidding employers with 5 or more employees from discriminating on the basis of “sex including pregnancy, childbirth, or a related medical condition.” The new ordinance amends and supplements these existing provisions, elevating protections for pregnant workers by making pregnancy its own protected class. It also makes nearly all of the law’s antidiscrimination provisions apply to partners of pregnant workers, as well.

Under the new ordinance, Pittsburgh employers can be liable for discrimination if they fail to reasonably accommodate their pregnant employees, unless they can prove that doing so would cause undue hardship. Examples of reasonable accommodations listed by the ordinance include, among other things, schedule modifications, granting leave requests, modified duties and job requirements, and modified work stations.

The ordinance requires employers to initiate an interactive process with pregnant employees who are having an issue with their work performance or conduct at work related to their or a partner’s pregnancy, childbirth, or related medical condition —regardless of whether the employee has asked for an accommodation. In addition, it limits when employers may request medical documentation from pregnant workers and forbids retaliation against employees who request reasonable accommodations under the new law.

The Pittsburgh Commission on Human Relations is the City agency tasked with investigating complaints under this ordinance.

We will provide updates as additional information and guidance becomes available.

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 21st blog in this series, which digs into the FMLA regulations to address discrete mis-steps that can result in legal liability.

Dictating the documentation an employee provides to establish a family relationship.

It is common knowledge that employees can take FMLA leave due to a serious health condition of an immediate family member, which is defined under the law as a spouse, parent, and son or daughter.

The FMLA regulations also permit an employer to request documentation confirming the relationship, within certain parameters.

An employer may choose to require an employee to provide reasonable documentation of the covered family relationship when an employee seeks leave for the care of a family member with a serious health condition.  This documentation may take the form of a simple statement from the employee, a child’s birth certificate, a court document, etc. The employer is entitled to examine the documentation, and the employee is entitled to the return of the official document submitted for this purpose. 29 CFR § 825.122(k).

According to the U.S. Department of Labor, it is the employee’s choice whether to provide a simple statement or other documentation. Therefore, an employer should not dictate the specific type of documentation it wants to review. Further, employers may not use a request for confirmation of a family relationship in a manner that interferes with an employee’s exercise or attempt to exercise FMLA rights. Therefore, such a request should be reasonable based on the particular situation.

This is a discrete issue under the FMLA, and case law on this particular regulation is virtually nonexistent. However, employers should be aware of their ability to confirm covered family relationships, and how to properly do so, in accordance with the FMLA regulations.

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