Washington State Pushes Back First Reporting Deadline for Paid Family and Medical Leave Law

By Jonathan M. Minear on July 19, 2019

The Washington Employment Security Department (ESD) has pushed back the first reporting deadline under this new law to August 31, 2019. By that date, all Washington employers must file reports about their employees, including their wages and associated hours worked during the first two quarters of 2019. In addition, Washington employers must remit all premiums due for those first two quarters. To file these reports and remit these premiums, Washington employers will need Paid Family and Medical Leave accounts with ESD. Detailed instructions on creating accounts, filling reports, and remitting premiums are available on ESD’s Paid Family and Medical Leave web page. With the exception of these first two quarters, the law requires Washington employers to report information and remit premiums by the last day of the month after every completed quarter.

Washington’s Paid Family and Medical Leave Law went into effect on January 1, 2019. This year, the state will collect premiums and information from Washington employers. Starting on January 1, 2020, eligible Washington employees may apply to ESD for benefits under this law.

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.

Paid Sick Days Back on Track in Pittsburgh

By Sheri L. Giger and Sean P. Dawson on July 17, 2019

The Pennsylvania Supreme Court upheld the Pittsburgh Paid Sick Days Act (“PSDA”) in a decision today, overturning two lower court decisions that found the Act was invalid as an impermissible business regulation.

Under the PSDA, employers with 15+ employees must provide paid sick leave, up to 40 hours per year, 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.

The effective date of the PSDA is unknown at this time, but we will continue to update this post as more information becomes available.

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.

Oregon Joins Growing Number of States Requiring Paid Family and Medical Leave

By Daniel J. Moses on July 15, 2019

Just hours before the constitutionally-mandated end of Oregon’s state legislative session (June 30 at midnight), the Oregon Senate voted to pass HB 2005—which will provide paid family and medical leave to eligible employees beginning January 1, 2023. HB 2005 now heads to the desk of Governor Kate Brown, who has already said she intends to sign the bill.

With Governor Brown’s signature, Oregon will become the eighth state to require paid family medical leave for eligible employees. The paid leave framework—styled the Family and Medical Leave Insurance (“FAMLI”) Program—was modeled after Oregon’s unemployment insurance program and will similarly be administered by the Oregon Employment Department and funded through payroll contributions.

Please click here for a more detailed analysis of Oregon’s new paid family and medical leave law.

Maine Enacts Law Extending Protections to Pregnant and Nursing Employees

By Daniel P. Schwarz on July 10, 2019

On June 27, 2019, Maine Governor Janet Mills signed into law L.D. 666, which extends existing protections for pregnant and nursing employees in Maine. The act, entitled “An Act to Protect Pregnant Workers,” creates broad protections for workers, covering any limitation of an employee’s ability to perform their job due to pregnancy, child birth, or related medical conditions including lactation. The act also amends existing provisions of 5 M.R.S.A. § 4572-A to make the section’s protections gender-neutral.
Of significance to Maine employers, the new law requires employers to provide reasonable accommodations for pregnancy-related conditions. Employers may only avoid providing these accommodations if they are able to demonstrate that the accommodation proposed would impose an undue hardship on the operation of their business. L.D. 666 sets out examples of reasonable accommodations for pregnancy-related conditions. These include, but are not limited to, providing more frequent or longer breaks, temporary modifications in work schedules, seating or equipment, temporary relief from lifting requirements, temporary transfer to less strenuous or hazardous work, and provisions for lactation.
The new law does not substantially alter the already existing provisions of § 4572-A. These prohibit employers from treating pregnant workers who are able to work differently from other workers and requires employers to treat pregnancy-related conditions in the same manner as other disabilities or illnesses.
L.D. 666 will take effect on September 19, 2019.

What Am I Doing Wrong?? Common FMLA Mistakes

By Sheri L. Giger on July 3, 2019

“What did I do wrong?” and “Am I doing this correctly” are frequent questions from clients regarding FMLA administration. This is the 24th blog in this series, which digs into the FMLA regulations to address discrete mis-steps that can result in legal liability.

Not properly understanding how holidays and holiday pay play into FMLA leave.

With the Fourth of July holiday this week, this blog post is a reminder for employers of how company holidays play into the scheme of FMLA leave.

Under the FMLA regulations, determining the amount of leave used by an employee is treated differently based on whether the employee is on continuous or intermittent FMLA leave:

Continuous FMLA leave. If an employee is on continuous FMLA leave, the fact that a company holiday may occur within the week taken as FMLA leave has no effect. The entire week of leave is counted as FMLA leave.

Intermittent FMLA leave. If an employee in on intermittent FMLA leave and using increments of less than one week, the holiday will not count against the employee’s FMLA leave, unless the employee was scheduled and expected to work the holiday and takes the day off as FMLA leave.

Do I have to pay holiday pay?

Regarding whether an employee is entitled to holiday pay for FMLA leave requires a separate analysis. The FMLA regulations state that an “employee’s entitlement to benefits other than group health benefits during a period of FMLA leave (e.g. holiday pay) is to be determined by the employer’s established policy for providing such benefits when the employee is on other forms of leave (paid or unpaid, as appropriate).” (29 CFR §825.209.) This means that an employer must analyze how it treats holiday pay and non-FMLA leaves.

For example, if an employee takes a full week of vacation time to travel with family, does the employee receive holiday pay for the holiday? If yes, then an employee who takes a full week of vacation time concurrently with FMLA leave during the same week also must be paid for the holiday. This way, the holiday pay practice is consistent with how the employer pays out holiday pay for any employee taking vacation during the same week, whether for FMLA or non-FMLA.

Similarly, if an employee takes a full week off for non-FMLA personal reasons on an unpaid basis, perhaps under a Personal Leave or similar policy, and is not paid for the holiday, then an employee who takes a full week off for FMLA reasons on an unpaid basis is also not paid for the holiday.

In a nutshell…

Navigating through the regulations reveals the basic rules regarding holiday pay.

Continuous leave of one week or more? The entire week is counted as FMLA, despite the holiday.
Intermittent leave of less than one week? The holiday is not counted as FMLA unless the employee is scheduled to work on the holiday and calls off for FMLA.
Treatment of holiday pay? Holiday pay must be consistent with other forms of non-FMLA leave, whether paid or unpaid.

Paid Sick Leave on Track in Dallas and San Antonio

By Kristin L. Bauer, Katrin U. Schatz, Julie A. Farmer and Michael J. Lombardino on June 27, 2019

As noted in our recent post, absent extraordinary legislative action or prompt legal challenge, by August 1, 2019, most employers with employees working at least 80 hours a year in Dallas or San Antonio should be prepared to comply with paid sick leave ordinances.

The city of San Antonio recently released an eight-month implementation plan for its paid sick leave ordinance. The implementation plan (dubbed as a “listening tour”) will run through April 1, 2020, and will focus on educating employers and employees about the new paid sick and safe leave ordinance. The city will host six public meetings so that individuals can learn about the law and ask questions. Starting August 1, 2019, a team will begin investigating complaints in San Antonio as part of its efforts to educate employers. San Antonio’s Metro Health Department webpage offers an employer checklist, a sample paid sick leave policy, and a spreadsheet to help companies track employees paid sick time.

The city of Dallas has not yet announced an implementation plan, even though its ordinance is nearly identical to the San Antonio ordinance and shares the same fast-approaching effective date. The city of Dallas has confirmed that the director of the Office of Fair Housing and Human Rights is the “director of the department designated by the city manager to implement this ordinance,” and that the Office is creating informational materials and resources to assist with implementation. Any informational materials and resources will be posted on the city website.

Despite the effective date for the Dallas and San Antonio paid sick leave ordinances, civil penalties will not apply until April 1, 2020. But both the Dallas and San Antonio ordinances provide for civil penalties for retaliation as of August 1, 2019 (for most employers).

With the effective date quickly approaching, employers with employees in Dallas or San Antonio need to prepare. For more information on both the Dallas and San Antonio Municipal Ordinances, click here.

We thank summer clerks Rachael I. Thomson, in our Houston office, and Logan Collier Adams, in our Dallas office, for their assistance.

Oregon Enacts Living Donor Leave Law

By Daniel J. Moses on June 26, 2019

Earlier this month, Oregon Governor Kate Brown signed Senate Bill 796 into law—after it passed 28-1 in the state Senate, and unanimously in the House—providing protected leave under the Oregon Family Leave Act (“OFLA”) for employees who miss work in connection with donating a body part, organ, or tissue.

The bill expands OFLA’s definition of “serious health condition” to include “[a]ny period of absence for the donation of a body part, organ or tissue, including preoperative or diagnostic services, surgery, post-operative treatment and recovery.” Previously, the definition covered only those conditions requiring inpatient care, constant care, or posing a reasonable possibility of death, as well as any period of disability due to pregnancy or absence for prenatal care. Oregon law permits an employee to take up to 12 weeks of unpaid leave per year to care for a family member with a serious health condition, or the employee’s own serious health condition.

Organ donors arguably would have qualified for OFLA-protected leave even without the amendment—at least where complications from the procedure result in the need for extended medical care—but employers should be aware that there is no room for such debate when the bill becomes effective on January 1, 2020.

In addition to serious health condition leave, Oregon law also provides protected parental leave, sick child leave, bereavement leave, military family leave, and paid sick leave. For guidance on these developments or other 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.

New Maine Law Requires Time Off From Work For Appointments at VA Medical Facilities

By Tara K. Burke and K. Joshua Scott on June 25, 2019

State and local leave laws are changing weekly and sometimes even daily! For the second time this month, Maine is adjusting its leave laws. Employers in Maine will soon be required to provide veterans with time away from work to attend scheduled appointments at Department of Veterans Affairs medical facilities. If paid leave is available to the veteran, he or she must be permitted to use paid leave for the absence. If a veteran has no available paid leave, then the employer must allow the veteran to take unpaid leave. Veterans are required to give their employer notice of the appointment “as soon as reasonably possible.” The law goes into effect on September 19, 2019.

While this new law does not mandate that employers provide paid leave, Maine recently enacted a paid leave law that, as of January 2021, will require most private employers to provide employees with up to 40 hours of paid leave annually that the employee can use for any reason. Additional information about Maine’s Act Authorizing Earned Employee Leave is available in our June 13, 2019 Legal Update.

Jackpot! New Nevada Laws Provide Additional Benefits for Employees

By Tara K. Burke on June 14, 2019

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.

Bonuses, Pay Increases and FMLA Reinstatement

By David S. Mohl on June 11, 2019

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.