Jackpot! New Nevada Laws Provide Additional Benefits for Employees

By Tara K. Burke on

This week, Governor Steve Sisolak signed a law requiring private employers with 50 or more employees in Nevada to provide 0.01923 hours of paid leave for each hour an employee works. Employees must be permitted to use up to forty hours of available paid leave “without providing a reason to his or her employer.” Nevada’s paid leave law is similar to the new paid leave law in Maine that requires employers provide paid leave that employees can use for any reason. New York City Council is reportedly considering similar legislation that would require paid personal time in addition to the safe/sick time that many employees are already entitled to. Nevada’s law takes effect on January 1, 2020 and Maine’s law takes effect on January 1, 2021.

Governor Sisolak also signed a new law last week making it illegal, subject to limited exceptions, to conduct pre-employment drug testing for marijuana in the state of Nevada beginning on January 1, 2020.

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.

Bonuses, Pay Increases and FMLA Reinstatement

By David S. Mohl on

An employee returning from FMLA leave is generally entitled to reinstatement to the same position they held prior to the leave or to a virtually identical position.

A common area of confusion is how handle pay increases or other bonuses when an employee returns from FMLA leave.

An employee returning from FMLA leave is entitled to any unconditional pay increases that may have occurred during the FMLA leave period, such as cost of living increases. Pay increases conditioned upon seniority, length of service, work performed or the achievement of a specified goal must be granted in accordance with the employer’s policy or practice with respect to non-FMLA leaves.

Section 825.215(c)(2) of the FMLA regulations specifically states:

[I]f a bonus or other payment is based on the achievement of a specified goal such as hours worked, products sold or perfect attendance, and the employee has not met the goal due to FMLA leave, then the payment may be denied, unless it is otherwise paid to employees on an equivalent leave status for a reason that does not qualify as FMLA leave.  For example, if an employee who used paid vacation leave for a non-FMLA purpose would receive the payment, then the employee who used paid vacation leave for an FMLA-protected purpose also must receive the payment.

If an employer has a practice of pro-rating a bonus for employees who are on a non-FMLA unpaid leave to account for the time the employee worked, the bonus should be similarly pro-rated for employees who take FMLA leave and, as a result, don’t meet the bonus requirement.

To manage employee expectations and help ensure consistency, it is recommended that bonus plans and related documents address the treatment of bonuses in leave circumstances.

An increasing number of states and municipalities are passing paid sick leave laws.  Employers in a jurisdiction with a paid sick leave law should examine the law to see if it addresses payment of bonuses during a paid sick leave period that may run concurrently with the FMLA.

Jackson Lewis can assist with navigating the FMLA and how it interacts with other entitlements.

Will They or Won’t They: A Look at Some Significant Proposed California Legislation Relating to Leaves, Disability, and Other Protected Time Off

By Ariel Beverly and Susan E. Groff on

With May 31st 2019, marking the deadline for bills to be passed by their California house of origin, the following are some key pieces of employment legislation that may find their way to Governor Gavin Newsom’s desk in October. Here is a round-up of potential 2020 legislation worth watching:

Assembly Bill 767 – This bill would state that it is the intent of the Legislature to consider the inclusion of infertility treatment in the definition of essential health benefits.

Assembly Bill 1223 – Requires public and private employers to provide employees with an additional 30 business days of unpaid leave (after exhausting 30 business days of paid leave) for the purposes of organ donation.

Assembly Bill 1748 – Amends the California Family Rights Act (CFRA) 1,250-hour requirement as applied to flight deck or cabin crew employees in a manner consistent with the Federal Family and Medical Leave Act.

Senate Bill 142 – Requires the Building Standards Commission to adopt mandatory building standards for the installation of lactation space for employees in nonresidential buildings newly constructed or remodeled for workplace occupancy when there is a tenant improvement project to the building and certain criteria are met.

Please contact a Jackson Lewis attorney if you have any questions about these developments.

Connecticut Paid Family and Medical Leave Passes House; To Governor for Signature

By Francis P. Alvarez and Sally Welch St. Onge on

Late Friday, the Connecticut House passed a paid family and medical leave bill, which Governor Ned Lamont said he will sign, to provide paid leave to eligible employees and significantly expand employee eligibility and covered reasons for leave.   The major practical effects of the bill, once signed, are:

  • Making 12 weeks of paid leave, funded by a 0.5%  employee payroll tax (effective in 2021), available to the vast majority of employees in Connecticut beginning in 2022; and
  • Expanding covered FMLA reasons to include caring for grandparents/children, siblings, and those who are equivalent to a family member.

The Governor previously said that he would veto the bill, which was passed by the Senate in late May, but changed his position following negotiations as to how the program would be administered.

Timing:

The most significant changes are not effective until 2021 or 2022:

  • January 1, 2021: employee payroll contributions begin
  • On or before January 1, 2022: Department of Labor will provide guidelines for the expanded FMLA
  • January 1, 2022: expansion of covered individuals and reasons for FMLA effective
  • January 1, 2022: actual compensation payable

Note: Employers can apply for approval of a private program, but it must provide equivalent benefits and meet a number of other specific requirements, including approval by a majority vote of the employer’s employees.

Paid Leave Entitlement:

  • Up to 12 weeks paid leave are available for state FMLA covered reasons and under the family violence leave law (Conn. Gen. Stat. § 31-51ss). An additional two weeks will be available for a incapacitating serious health condition related to pregnancy.
  • Weekly paid leave compensation is capped at a maximum of up to 60 times the minimum wage. When payments begin, the minimum wage is set to be $13 per hour, so the maximum will be $780.
  • Employed individuals must have earned at least $2,325 in a “base period” to be eligible for paid leave benefits.  Individuals who are unemployed may apply for benefits if they meet the earnings requirement and were employed within the 12 weeks before they applied for benefits.
  • Individuals may receive compensation concurrent with “employer-provided employment benefits” (an undefined term) but the total cannot exceed the employee’s regular rate of compensation.
    • While it is not entirely clear, this provision, along with another allowing employers to require employees to use all but two weeks of paid time off, at least suggests that payments through the state program would begin after the employee’s paid time off is exhausted, but that, in any case, the total amount of leave would be limited to 12 (or 14) weeks.
  • Compensation is available for “non-consecutive hours of leave.”
    • This creates a paid intermittent leave entitlement.

Expansion of Connecticut FMLA Coverage:

  • Covers private employers with one employee (rather than the previous 75).
  • Will expand current coverage to care for a spouse, child, or parent to also cover care for a grandparent, grandchild, sibling, and any other “individual related to the employee by blood or affinity whose close association the employee shows to be the equivalent of those family relationships” (the DOL is to provide guidance on this issue).
  • Removes requirement that an employee must have worked for an employer for 12 months and for 1000 hours.  Instead, an employee simply needs to have worked for the employer for three months.
  • Total leave is reduced from 16 to 12 weeks in a 12-month (rather than 24-month) period (with two additional weeks available for incapacitation pregnancy-related condition).
    • This change will make it simpler to align Connecticut and federal FMLA calculations in most cases.

Notice requirements:

Effective July 1, 2022, employers must provide notice to employees at time of hire and annually of FMLA entitlement and terms of use, that retaliation is prohibited, and that employee has right to file a complaint with the Connecticut DOL for violations of the Connecticut FMLA.

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While the contributions and payments under the bill, once signed, will not occur for two or more years, Connecticut employers must be aware of these monumental upcoming changes in employee leave management.

Oregon Enacts Pregnancy Accommodation Law

By April Upchurch Fredrickson and Bryce W. Hanks on

Beginning January 1, 2020, Oregon employers with at least six employees must comply with the Employer Accommodation for Pregnancy Act. The Act requires employers to provide reasonable accommodations to applicants and employees who have limitations related to pregnancy, unless it would impose an undue hardship on the employer.  The Act also makes it unlawful to deny employment based upon the need to make a reasonable accommodation, take adverse action against an employee for inquiring about, requesting, or using a reasonable accommodation, require an employee to accept unnecessary reasonable accommodations, or to use FMLA leave instead of a reasonable accommodation. Employers must post signs regarding the Act on their premises, as well as provide written notification to all their employees within 180 days of the Act (i.e., on June 29, 2020). Further, going forward, employers must also provide written notification to new hires and existing employees who have informed their employer of a pregnancy.

Please click here to access our article discussing the Act in more detail.

Texas Paid Sick Leave: Dallas and San Antonio Employers Should be Prepared for Paid Sick Leave Laws by August 1 Absent Prompt Legislative or Court Intervention

By Kristin L. Bauer and Katrin U. Schatz on

Although there is no Texas state-wide law that requires paid sick leave in Texas, the cities of Austin, Dallas, and San Antonio have adopted paid sick and safe leave laws. Proposed legislation  that would have blocked these laws from going into effect was introduced during the most recent Texas legislative session. However, as of late last week, as the regular Texas legislative session winds down, these efforts appear to be stalled, perhaps indefinitely. Options for legislative action to block the city-driven leave laws from going into effect are theoretically possible, but the practical chances of happening would require much to fall in place (e.g, passage in special session).

For now, Texas employers with employees in Austin, Dallas, and San Antonio need to be prepared for every option. With respect to the Austin ordinance, the Austin-based Third Court of Appeals has held it is unconstitutional and enjoined enforcement.  That issue is currently on appeal to the Texas Supreme Court. The fate of the Austin ordinance will remain undetermined until the legal action is exhausted, the timing of which is uncertain. Meanwhile, there has yet to be a legal challenge to the Dallas and San Antonio ordinances. Both are scheduled to go into effect for most employers on August 1.

Employers with workers in San Antonio and Dallas would be well advised to watch this issue closely over the next few months and have a plan in place for compliance by August 1. The Dallas and San Antonio ordinances are modeled on the Austin ordinance, which is explained in detail here. As such, the outcome of the current litigation over the Austin ordinance may impact the future of the San Antonio and Dallas ordinances, even if they are not directly challenged through separate legal action. However, at this time, we cannot predict when that will occur.

For additional information about the status of paid sick leave laws in Texas, or other leave management issues, please contact the Jackson Lewis attorney with whom you regularly work.

Paid Leave Law in Maine Passes Legislature and Waits for Governor Signature

By K. Joshua Scott and Debra Weiss Ford on

The Maine legislature recently passed An Act Authorizing Earned Employee Leave. If Governor Mills, who has been vocal in her support of the bill, signs the bill into law, it would take effect on January 1, 2021.

The bill would require Maine employers with 10 or more employees working for more than 120 hours in the calendar year to provide one hour of paid leave for every 40 hours an employee works, up to a maximum of 40 hours paid leave annually.

Employees will begin accruing earned leave at the start of employment and will be eligible to use the accrued paid leave after 120 days of employment.  Unlike other states with paid leave laws, the use of paid leave in Maine will not be limited to sick leave and employees could use the paid leave for any reason.  The bill requires that employees provide “reasonable notice” of the intent to take leave, absent an emergency, illness, or other sudden necessity, but it does not define what constitutes reasonable notice, though “use of leave must be scheduled to prevent undue hardship on the employer.”

Employees taking paid leave are paid at their same base rate of pay and receive the “same benefits as those provided under established policies of the employer pertaining to other types of paid leave.”  Employers who violate the law will be subject to penalties of up to $1,000 per violation.

We will continue to monitor and provide updates as they become available.

Non-Minneapolis Employers Must Comply With Minneapolis Paid Sick Leave Law, Appeals Court Rules

By Janet M. Olawsky on

Minneapolis’ Sick and Safe Ordinance extends to any employee who performs at least 80 hours of work per benefit year in the City of Minneapolis, even if his or her employer is not located within the city’s limits, the Minnesota Court of Appeals has held.  Minnesota Chamber of Commerce v. Minneapolis, No. A18-0771 (Apr. 29, 2019).  This significant ruling stretches Minneapolis-imposed requirements to non-Minneapolis employers, including — in some instances — requiring them to provide paid time off to their employees.

Please click here to access our article discussing this recent decision.

Connecticut Paid Family and Medical Leave: Senate Passes Bill, which Governor Vows to Veto in Current Form

By Francis P. Alvarez and Sally Welch St. Onge on

Connecticut employers and employees are focused on Hartford, where last night the Senate passed a paid family and medical leave bill. Governor Ned Lamont said yesterday he would veto the bill. While Governor Lamont supports paid family and medical leave, he said he disagrees with the state-administered system outlined in the bill and wants to explore alternative options for administration of a paid leave program. The bill passed by the Senate would provide up to 12 weeks of paid family and/or medical leave within a 12-month period. An additional 2 weeks of benefits would be provided for an incapacitating serious health condition during pregnancy. The bill would amend Connecticut’s Family and Medical Leave law, which currently provides unpaid leave. Governor Lamont has not expressed objections to the concept of paid leave, just the system by which it would be administered.

We will continue to track developments as the bill heads to the House.

What Am I Doing Wrong?? Common FMLA Mistakes

By Sheri L. Giger on

“What did I do wrong?” and “Am I doing this correctly” are frequent questions from clients regarding FMLA administration. This is the 23rd blog in this series, which digs into the FMLA regulations to address discrete mis-steps that can result in legal liability.

Not understanding all of the reasons an employee can take FMLA leave for a qualifying exigency.

In my frequent discussions with clients on FMLA issues, the topic of FMLA leave for a qualifying exigency rarely arises. When it does, an employer not well-versed with this FMLA leave reason can take inadvertent mis-steps leading to compliance issues.

FMLA leave for a qualifying exigency has many facets. Eligible employees may take FMLA leave for a qualifying exigency while the employee’s spouse, son, daughter, or parent is on covered active duty or call to covered active duty status, or has been notified of such, under 29 CFR § 825.126.

The FMLA regulations provide several examples of what constitutes a qualifying exigency:

  • Short-notice deployment – Addresses any issue arising from the military member notified of an impending call or order to covered active duty 7 or less calendar days prior to deployment.
  • Military events and related activities – Official ceremonies, programs, or events related to the call to or covered active duty status of the military member.
  • Childcare and school activities – To arrange for alternative child care, to provide childcare on an urgent immediate need basis (not regular basis), to enroll or transfer to a new school or daycare facility, to attend meetings with school or daycare staff, all due to circumstances arising from the call to or covered active duty status of the military member.
  • Financial and legal arrangements – To make or update financial or legal arrangements to address the military member’s absence while on call to or covered active duty status, such as a will or legal trust, powers of attorney, transferring bank account signature authority, or obtaining military identification cards.
  • Counseling – To attend counseling provided by someone other than a health care provider for oneself, the military member, or child of a military member (including a biological child, foster child, stepchild, or legal ward) related to the call to or covered active duty status of the military member.
  • Rest and recuperation – To spend time with the military member who is on short-term, temporary, or R&R leave during the period of deployment.
  • Post-deployment activities – To attend arrival ceremonies, reintegration briefings and events, and any other official ceremony or program for up to 90 days following the termination of the military members covered active duty status.
  • Parental care – To care for the parent of a military member who is incapable of self-care and who is the military member’s biological, adoptive, step, or foster parent, or any other individual who stood in loco parentis to the military member when under age 18.
  • Additional activities – To address other events that arise out of the military member’s call to or covered active duty status, provided that an employer and employee agree that such leave shall qualify as an exigency.

The FMLA regulations describe these reasons in more detail at the following link: https://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&sid=abbd92cdff37c5d32de741cc5ccc1e81&rgn=div5&view=text&node=29:3.1.1.3.54&idno=29#se29.3.825_1126.

The U.S. Department of Labor’s fact sheet on Qualifying Exigency Leave under the Family and Medical Leave Act is also a good resource should questions arise:  https://www.dol.gov/whd/regs/compliance/whdfs28mc.pdf.

When an employee requests FMLA leave based on qualifying exigencies, an employer should re-familiarize itself with these regulatory provisions to ensure the FMLA leave is properly granted.

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