The 2019 novel coronavirus continues to evolve and has been officially named COVID-19 by the World Health Organization replacing the previous 2019-nCoV designation. There are now over 46,000 confirmed cases across the globe, with the vast majority in mainland China, and 15 confirmed cases in the U.S. Many details about the virus are unknown including its severity and how it spreads leaving employers with many questions about how to appropriately respond. New guidance is available for employers from the Centers for Disease Control and Prevention (CDC), the Occupational Safety and Health Administration (OSHA), and California’s Division of Occupational Safety and Health (CAL OSHA). Read more.

As California employers continue to grapple with recent legislation effective January 1, California Governor Gavin Newsom is releasing his plans for even more employment legislation. Along with the Governor’s proposed budget, the Governor has announced various “trailer bills.”  Trailer bills are measures that accompany the annual state budget that theoretically are necessary to implement the budget. Yet they can also be an easy way for the Governor to get difficult legislation passed, as the trailer bills only require a simple majority to pass.

California already has several types of job-protected leaves of absence for employees. Even so, most job-protected leaves are limited depending on the size of the employer. For example, California’s Pregnancy Disability Leave Law (“PDLL”) applies to employers with five or more employees and requires these employers to provide up to four months of unpaid job-protected leave because of pregnancy-related illness.

Another is the California Family Rights Act (“CFRA”) which is California’s version of the federal Family Medical Leave Act (“FMLA”). CFRA provides up to 12 weeks off in a year for either the birth/placement of a child or due to an employee’s or an employee’s family member’s serious health condition. Before 2018, CFRA, including provisions related to the birth/placement of a child, pertained only to employers of 50 or more employees. However, in 2017, the California legislature passed the New Parent Leave Act, which expanded baby bonding portions of CFRA to employees of employers of 20 or more employees. Job-protected leave under CFRA for a serious medical condition continues to apply only to employees of 50 or more employees.

One of the Governor’s new trailer bills seeks to repeal the New Parent Leave Act. This is not a nod to the struggles of smaller businesses with compliance. Instead, the trailer bill seeks to amend CFRA and PDLL to apply to all employers, regardless of size. This would be a drastic expansion to job-protected leaves in California.

It is difficult to predict how the trailer bill amending CFRA and PDLL will progress during the coming months as it winds through the legislature. Should the bill be passed by the legislature and signed by the Governor, it would go into effect immediately upon signing and mean huge expenses for small businesses.

Jackson Lewis will continue to track changes with the legislation. If employers are not sure they are currently in compliance or want to plan for the potential future, they should contact a Jackson Lewis attorney to talk about their leave policies and procedures.

“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration.  This is the 29th blog in a series highlighting some mistakes employers can inadvertently make regarding FMLA administration.

Failing to consider an employee’s potential FMLA rights in the context of the Coronavirus.

This blog post keys off of the Jackson Lewis article published on January 28, 2020, “Coronavirus Concerns in the Workplace,” which can be found here.  That article mentions that the FMLA may allow employees time off under the FMLA, which we address in more detail here.

While FMLA regulations state that “the flu” ordinarily does not meet the Act’s definition of a “serious health condition,” the flu can still qualify as a serious health condition under the FMLA if it meets that definition, such as inpatient care or continuing treatment by a health care provider.  Based on recent reports, the Coronavirus could qualify as a serious health condition depending upon the specific situation.  Because of that, an eligible employee who contracts the Coronavirus—or one with a covered family member who comes down with the virus—may qualify for FMLA leave.

Also, eligible employees might be entitled to FMLA leave when taking time off for examinations to determine if a serious health condition exists, and evaluations of the condition, under the FMLA definition of “treatment.” Accordingly, an eligible employee may need FMLA leave to see a health care provider for the purpose of testing for Coronavirus—something that may become more common if the virus spreads.

Generally, employers should keep up to date as the Coronavirus situation evolves by regularly checking the websites of the CDC, WHO, DHS, OSHA, and U.S. State Department.  If issues arise in your workplace regarding the Coronavirus, keep in mind the potential FMLA rights of employees.  There also may be potential rights under any relevant state FMLA law and any state or local paid sick leave law.

The outbreak of the novel coronavirus (2019-nCoV) first identified in Wuhan, Hubei Province, China continues to raise not only health concerns, but issues for employers and employees. Information about the virus continues to evolve. After the World Health Organization declared a Public Health Emergency due to the 2019-nCoV, the Trump Administration announced that, as of 5:00 p.m. EST on February 2, 2020, all non-U.S. citizens who had visited China (not including Hong Kong and Macau) within the 14-day period preceding their entry or attempted entry into the U.S. would be temporarily banned from entering the country. The complete ban excludes Lawful Permanent Residents (Green Card holders) and close family members of U.S. Citizens and Green Card holders, among others. Read more here.

Clark v. Champion National Security, Incorporated (No. 18-11613, January 14, 2020) is the Fifth Circuit’s latest statement on whether the Americans with Disabilities Act (the “ADA”) requires an employer to excuse terminable misconduct—here, sleeping on the job—based on an employee’s after-the-fact, disability-related explanation. It does not.

Clark, an insulin-dependent Type II diabetic, was a personnel manager for a security company. Clark was provided two reasonable accommodations: an office refrigerator to store insulin and flexible scheduling for doctor’s appointments. Clark also requested, but the employer refused, an exception to its grooming policies requiring clean-shaven faces and tucked-in shirts, because Clark did not show these requests were diabetes-related. Although Clark complained about the denial of these requests, after further review, the employer’s position remained the same.

The employer strictly enforced its “alertness” policy, regularly terminating employees for sleeping or appearing asleep at work when confirmed by a photograph and two witnesses. Clark’s manager received uncorroborated reports that Clark was sleeping on duty at least twice. On December 7, 2017, Clark was observed sleeping at work by a witness and Clark’s manager, who took a picture. Clark woke up on his own and he did not appear to have any physical distress. Nonetheless, Clark told his manager he believed he was having a diabetic emergency and left for the ER. While Clark was at the ER, the manager called to fire him.

Clark sued under the Americans with Disabilities Act (ADA), claiming discriminatory discharge, failure to accommodate, disability-based harassment and discharge in retaliation for his complaint about denial of his grooming policy requests. The Court rejected all claims, reaffirming several ADA principles of importance to employers.

First, the Court rejected Clark’s argument that his employer had a duty to determine if there was a medical cause for his being asleep before firing him, reasoning that the ADA does not insulate an employee from discipline for misconduct, even when an impairment causes the misconduct. The Court held “an after-the-fact, retroactive exception to the alertness policy” is not a reasonable ADA accommodation. Clark had not requested any accommodation related to falling asleep at work or lost consciousness; the employer had no obligation to anticipate potential consequences of a disability that Clark had not communicated.

Second, the Court concluded that Clark was not qualified for his position at the time of his discharge because he could not perform his job duties while asleep. While the Court’s analysis of this point is somewhat novel, the decision affirms the commonplace proposition that staying awake while on duty is an essential job function of almost any job.

Third, the Court emphasized that the mere fact that an employer disagrees with or seeks clarification from an employee about the reasonableness or necessity of a proposed accommodation is not actionable disability-based harassment. Notably, there was no evidence here that the employer used harsh or unkind language when communicating with Clark about his grooming requests, or otherwise indicated any anti-disability animus in these exchanges.

Finally, the Court offered guidance to employers on how to support its legitimate business reason for termination. The Court emphasized the manager’s reasonable belief that misconduct had occurred was more important than the ultimate accuracy of the reason. Here, Clark was terminated after multiple reports that he was asleep at work. The incident for which he was fired was verified by a photo and two witnesses, the same standard that supported the termination of others who slept—i.e., consistent application of discipline to similarly situated employees. Because the manager observed Clark wake up and he did not appear in distress, the manager was reasonable in disbelieving Clark’s post-nap excuse that diabetes caused his loss of consciousness. Moreover, even after his discharge, Clark produced no medical evidence that he in fact had suffered a diabetic emergency.

Following Clark, Fifth Circuit employers should be reassured that consistent enforcement of reasonable disciplinary rules generally will not violate the ADA. Moreover, Fifth Circuit employers should also take comfort that the ADA will not require employers to excuse performance of essential job functions. Nonetheless, employers must take care to engage in the interactive process and offer accommodations to employees who identify a disability and request reasonable accommodations, communicating about such requests directly and with dignity and respect.

News of an outbreak of a new coronavirus first identified in Wuhan, Hubei Province, China raises issues for employers and employees about the appropriate workplace responses. Many employers are seeking guidance on how best to respond to workplace concerns, especially those with employees engaged in international travel, as well as employers in the healthcare, airline, and border protection industries. Read more here.

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.