Austin, Texas Passes Paid Sick and Safe Leave Law

Austin, Texas Passes Paid Sick and Safe Leave Law                                                                

Early this morning the Austin City Council passed a long-discussed ordinance requiring employers to provide employees with paid sick and safe leave (“PSL”). Austin is the first city in the South ever to enact such a law.

Highlights of the New Austin Ordinance:

  • Effective October 1, 2018, employers must provide employees who work at least 80 hours in Austin in a calendar year to accrue PSL at the rate of one hour for every 30 hours worked, up to 64 hours annually (48 hours for employers with 15 or fewer employees).
  • PSL may be used for the employee’s or a family member’s illness, injury, health condition or preventive care, or as necessary to deal with domestic abuse, sexual assault or stalking involving the employee or a family member.
  • Unused sick time is carried over to the following year. However, an employer may cap annual PSL use (as opposed to accrual) at 8 days.
  • Employer handbooks must provide notice of these rights; posters to be issued by the City of Austin must be displayed.
  • Employers must provide a statement showing available PSL on at least a monthly basis.
  • An employer can create reasonable procedures to verify employees’ PSL requests. The ordinance specifically requires employees’ to timely request PSL “before their scheduled work time,” although employers may not prevent employees from using earned sick time for an “unforeseeable qualified absence.”
  • An employer may restrict an employee’s use of accrued PSL during an employee’s first 60 days of employment if the employer can establish “that the employee’s term of employment is at least one year.” How an employer can establish that, especially with respect to an at-will employee, is not addressed.
  • Employers may not condition the use of sick time on the employee finding a replacement for the time missed.
  • An employee transfer with the same employer does not impact the amount of earned sick time or the employee’s right to use it; if an employee returns to work for the same employer in a six month period, the employee may use previously earned sick time.
  • Employers may not retaliate against employees for requesting or using earned sick time, for reporting a violation, or for trying to exercise their rights to paid sick leave pursuant to the ordinance.
  • The ordinance will be enforced by the City of Austin Equal Employment Opportunity/Fair Housing Office. Implementing rules are expected to follow. A civil penalty of up to $500 applies for each violation.

Impact of Employer Size:

  • The effective date for most employers (with more than five employees) is October 1, 2018.
  • For employers with five or fewer employees, the law takes effect on October 1, 2020.
  • For employers with fifteen or fewer employees, the 64 hour required accrual is reduced to 48 hours annually.

What Employers Must Do:

As the October 1, 2018 effective date approaches, private employers with employees in Austin should review leave policies, procedures, payroll practices and notices to ensure compliance. Of note, although Austin is the first Southern city to pass a paid sick and safe leave law, it is part of the paid sick leave trend spreading from coast to coast.

State and local governments prefer to pass local leave laws in order to tailor to regional businesses and economies. And recently, the federal government has taken up the issue; Congress has introduced dueling bills from both sides of the aisle addressing paid sick leave, the Healthy Families Act and Workflex in the 21st Centuries Act (WFA). Meanwhile, employers with a national workforce face a variety of paid and unpaid leave laws, company-provided paid time off policies, and disability benefit obligations, which may or may not run concurrently and in some cases, contradict one another.

Paid sick leave laws are here to stay. Currently over 40 jurisdictions have passed such laws, and federal contractors are required to provide paid sick leave pursuant to the federal executive order 12988. Employers with a workforce in multiple jurisdictions must review and determine whether existing policies comply with the variety of paid leave laws. Such a review must include assessment of required record-keeping, handbook notice, and poster obligations as well as ensuring pay statement or other informational systems are in place to provide employees the required accrual and usage information.

Jackson Lewis is helping clients create compliant and comprehensive leave management programs as well as update policies, handbooks and notices. If you have employees in Austin, now is the time for such a review to prepare for the October 1st deadline. For additional information about Austin’s ordinance, a leave management program analysis, or other leave management issues, contact the Jackson Lewis attorney with whom you regularly work.

New York Paid Family Leave – One Month Check Up

The New York Paid Family Leave (NY PFL) law has been in effect for over a month, yet reports indicate that many New York employers are not prepared for the operation requirements of the law. The basics of the law shouldn’t be news to employers with employees in New York. The NY PFL law provides employees with job-protected, paid leave to bond with a new child, to care for a family member with a serious health condition, or due to a qualifying exigency that arises when a family member is deployed abroad on active military duty.  If you need a refresher on the law’s basics, review this NY PFL At-A-Glance and watch Jackson Lewis’s recorded webinar.

As employees are beginning to request NY PFL benefits, many employers find they still have questions, or didn’t quite prepare to implement the new law. One survey found that less than a third of employers surveyed were adequately prepared by January 1, 2018 to offer NY PFL benefits to their workforce.  This means most employers need a NY PFL check-up. It’s not too late for employers to check in and reassess their NY PFL preparedness.

Use this check list to conduct an employer self-assessment to determine NY PFL compliance preparedness.

We are also offering some FAQs for those NY PFL questions that are beginning to arise, or that employers may not even realize they have yet! Did you know:

  • an employee may receive New York City’s Earned Sick Time and NY PFL benefits concurrently? If the employee is eligible for sick time and NY PFL benefits, the leave reason qualifies under both laws, such as to care for a family member, and the employer’s policy allows an employee to elect to use accrued sick time to receive full pay during family leave then an employee can receive the two benefits simultaneously.
  • the minimum weekly benefit payment is $100? Or, if an employee’s weekly pay at the time of NY PFL leave is less than $100, the NY PFL benefit must in the amount of that weekly pay.
  • if an employee returns NY PFL certification forms late, the request for benefits cannot be denied? Rather, benefits are not required to be paid for any period more than two weeks prior to the date on which the employee provided the required forms.
  • if two family members work for the same employer and are eligible for NY PFL benefits, they can both receive benefits and take time off? However, an employer can allow only one employee at a time to bond with the same child or care for the same family member.
  •  if an employee requests FMLA leave for a reason that also qualifies under NY PFL, such as to care for a family member, an employer can require that the employee’s NY PFL benefits run concurrently. This avoids stacking of leave where an employee first requests FMLA leave and then requests NY PFL leave and benefits after FMLA entitlement exhaust

Remember, NY PFL benefits increase over the next four years so employers should continue to refine their policies and processes to stay current with this evolving law. Jackson Lewis can help employers coordinate NY PFL policies and administration with other employer benefits and federal, state, and local paid and unpaid leave laws as well as navigate the nuances of the NY PFL law. If you are self-insuring NY DBL benefits, Jackson Lewis attorneys can help develop a claims administration process and answer any day-to-day questions that may arise.

Animals in the Workplace—No, This is Not Another Blog About Sex Harassment

You have just received an e-mail alerting you to a FIDO issue and you are wracking your brain to recall the statute for which FIDO is an acronym. Then you read on and learn the email is from your new HR specialist who seems to put everything in “caps” and the question is about dogs in the workplace. You tell yourself it could be worse. Miniature horses are included within the definition of service animals that must be permitted in places of public accommodation.

 

You read on and learn that one of your customer service reps has started to bring his golden doodle into the workplace because he says Sparky helps keep him focused, keeps his anxiety symptoms in check and stops him from spouting off at dissatisfied customers. You are worried that if you permit this other workers are going to want to do the same thing and the workplace is enough of a zoo already.  To make things more difficult, there are other workers who (perish the thought) don’t like animals, are scared of them or may have allergies.

 

Although it presents a challenge, it requires you to use the same tools you bring to other disability-related accommodation requests—that is, you need to engage in the interactive process to determine how this request can be accommodated without causing your business an undue hardship. You may have to set certain boundaries and make sure that other workers’ contact is limited. You may have to allow additional breaks for the dog to walk and do what dogs do.

 

The things to keep in mind—as with all accommodation requests—are the job requirements so that you can analyze the situation on a case by case basis. You will need to take into account what services the animal is trained to provide. It is not a one-way street. As in all cases, employees need to recognize that the ADA’s interactive accommodation process requires a willingness for both sides to work together. You should also be aware employers can ask for documentation and information to support a request to use an animal in the workplace. This is not the case for businesses under the ADA’s public accommodation provisions.

 

Animals that are trained to provide specific services such as helping visually impaired workers complete their tasks or who can sense the onset of diabetic comas present one set of issues but the growing use of emotional support animals to help alleviate anxiety often pose more subtle analysis. There really are no rules as to what is acceptable or not and employers need to tread carefully when evaluating these requests.

 

You can require the animal to be well-behaved, house-broken and quiet. You may need to move the worker but you don’t want to isolate her because of her need to be accommodated. All of this should not be news. It is the same analysis you need to engage in with other requests for a disability related accommodation.

 

This will test your HR Superpowers but by keeping the interactive process open and using the same tools to resolve any conflicts that arise you should be alright. Not all dogs need be allowed in the workplace, but separating the Wheaton from the Mastiff is going to require a subtle analysis that should have you consulting with your employment counsel lest you end up in the dog house yourself.

 

Changes to ERISA’s Disability Claims Regulations Coming April 1

Employers who offer short-term and long-term disability plans governed by the Employee Retirement Income Security Act (ERISA), and their plan administrators, need to prepare for the approaching April 1st deadline of the new claims handling regulations.  Employer action items can be found in our article posted here. The ERISA regulations were effective January 2017, but were delayed until April 1, 2018. The U.S. Department of Labor (DOL) has confirmed the ERISA disability claims administration regulations will not be delayed or revised further, according to the DOL’s recent announcement.

Jackson Lewis attorneys are available to assist employers, plan administrators, and TPAs to ensure compliance by April 1st.

The Fate of the EEOC’s Wellness Regulations is Still Uncertain

In October 2016, AARP sued the Equal Employment Opportunity Commission (“EEOC”) under the Administrative Procedures Act (“APA”) arguing that there was no explanation for the shift in the EEOC’s position relating to what makes participation in a wellness program “voluntary”.  Originally, the EEOC argued that in order for a wellness program to be “voluntary,” employers could not condition the receipt of incentives on the employee’s disclosure of American with Disabilities Act (“ADA”) or Genetic Information Nondiscrimination Act (“GINA”) protected information.  However, under the wellness regulations, the EEOC now takes the position that an incentive of up to 30 percent of self only coverage would not render a program involuntary.  AARP argued that participation in a wellness program was not truly “voluntary” if an employee must choose between receiving a 30 percent decrease in health insurance premiums or providing their family’s personal health information to their employers. See AARP v. EEOC.

On August 22, 2017, AARP scored a win when U.S. District Judge John Bates granted AARP’s motion for summary judgment, finding that the EEOC had not sufficiently explained why programs that allowed employee participation incentives of up to 30 percent of the cost of the employee’s health insurance premiums didn’t violate the ADA or GINA requirements that such programs be voluntary. August 22, 2017 Opinion.  Shortly thereafter, AARP filed a Motion to Alter or Amend the Judgment asking the Court to either (1) vacate the wellness regulations but stay the mandate until January 1, 2018, or (2) issue an injunction against enforcement of the regulations effective January 1, 2018.  The EEOC opposed the motion stating that a “2018 vacatur of the Rules would be too disruptive for employers and employees.”

The Court’s December 20, 2017  Memorandum Opinion rejected AARP’s argument that the wellness regulations should be halted January 1, 2018.  Judge Bates determined that the current rules should remain in effect until January 1, 2019 in order to give the EEOC time to issue interim or revised rules on the issue.  The Opinion goes on to state that the “Court will also hold the EEOC to its intended deadline of August 2018 for the issuance of proposed rulemaking…but an agency process that will not general applicable rules until 2021 is unacceptable. Therefore, EEOC is strongly encouraged to move up its deadline for issuing the notice of proposed rulemaking, and to engage in any other measures necessary to ensure that its new rules can be applied well before the current estimate of sometime in 2021.”

In response to Judge Bates’ December 20th Opinion, the EEOC filed a Partial Motion for Reconsideration alleging that there was no basis for the Court to retain jurisdiction over the matter or to set deadlines for the EEOC to issue public notice and to file a status report with the Court.  The EEOC argued that “whether to amend or scrap the portions of the rules the court found illegal, and on what schedule, is entirely within the EEOC’s discretion.” Therefore, the EEOC has asked the Court to reconsider these aspects of its ruling.

In light of these decisions—and the uncertainty surrounding the future of the wellness regulations—employers should continue to run their wellness programs in accordance with the current regulations for 2018, but anticipate a change in the future.

For our previous blogs in this case, please see EEOC’s 2016 Wellness Program Regulations, The Saga Continues… AARP Suffers a Setback in its Challenge to the EEOC’s Wellness Regulations

Alabama Court Decides an Individual with a Partially Amputated Foot is not Disabled Under the ADA

The ADA Amendments Act of 2008 (ADAAA) made a number of significant changes to the definition of “disability.” Much of the change had to do with making it easier for an individual to establish that he or she has a disability within the meaning of the statute.  As a result employers have been accepting many more medical conditions as a covered disability and moving directly to the analysis of potential accommodations.  A recent decision by the U.S. District Court in Alabama reminded us that the analysis of an employer’s obligations under the ADA must start with determining the specific functional limitations of the applicant or employee.

In Feltman v. BNSF Railway Company (N.D. Ala Jan. 24, 2018) the Court concluded that an employee with a partially amputated foot was not disabled under the ADA (his toes and the adjoining area of his right foot were amputated).  Mr. Feltman applied for a Conductor Trainee position and was given an offer conditioned on a pre-employment medical examination.  During the medical examination his foot was not specifically evaluated nor did it present any obvious limitations.  Following the medical examination the Company concluded that Mr. Feltman was medically qualified for the Conductor Trainee position.  The employment documents Mr. Feltman was asked to complete included a disability self identification form.  He completed it by explaining that “technically” he has a disability but at no time has it caused him to fail to do what he wanted to do.  The Company re-opened his medical file and asked Mr. Feltman for additional information regarding any limitations he may have.  He again responded that he had no limitations.  Nevertheless the Company asked Mr. Feltman to see a foot specialist to confirm there would be no health or safety issues if he worked as a Conductor.  Mr. Feltman refused to provide any additional medical information because, he claimed, he was fully capable of performing the job.  The Company informed Mr. Feltman that without the information requested it would rescind his employment offer.

In dismissing Mr. Feltman’s claim that he was discriminated against on the basis of a disability, the Court concluded he did not demonstrate that his partially amputated right foot is an actual “disability” under the ADA because he did not show that the condition limits any of his major life activities. In fact he testified at his deposition that his condition did not limit his activities in any way, with or without the prosthesis he had available to him.

While missing limbs or partially missing limbs are often listed as an example of the type of condition that rises to the level of a disability, this case is a good reminder that examples are just that, and you must review the circumstances of each situation. A careful analysis of the employee’s specific functional limitations is necessary to determine if there is a disability that must be accommodated under the ADA.

Obesity Discrimination Claims Allowed to Proceed Under California Law

Is obesity a disability under California law? Are a supervisor’s alleged “fat remarks” sufficient evidence of disability discrimination?  On December 21, 2017, a California Appellate Court published an extensive decision regarding obesity as a disability under California law and issued further guidance on both counts.

Ketryn Cornell was an obese woman (5’5”, 350 pounds) who was fired by her employer, Berkeley Tennis Club, after she allegedly planted a recording device attempting to tape record a board meeting. Cornell was employed as a Night Manager, Day Manager and Tennis Court Washer. Cornell alleged among other claims disability discrimination and harassment based on her obesity.

Read More

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 twelfth in a series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Not adequately investigating a potential FMLA abuse situation to put the employer in a stronger defensive position.

While an employer may never discourage legitimate FMLA leave, if there is suspected abuse of FMLA leave, an employer should investigate. Some courts have supported an employee’s termination for FMLA abuse when the employer acted reasonably and in good faith, and could establish that there was an “honest belief” that the employee engaged in FMLA abuse.

In Capps v. Mondelez Global, LLC, Case No. 15-3839 (3d Cir. Jan. 30, 2017), an employee’s manager found in his company mailbox an anonymously-delivered newspaper clipping reporting that the employee was arrested and convicted of DUI the previous year. The company investigated and reviewed the court docket to compare dates of the employee’s court appearances with dates the employee took FMLA leave.  The date of the employee’s arrest and other court dates for the DUI proceedings matched dates the employee took FMLA leave. When asked, the employee provided documents that the employer found not to be credible. The court found that the employer had an honest belief that the employee abused FMLA, based on the correlating dates as well as the employee’s failure to provide an adequate excuse. The court stated that the employer could not be liable for FMLA interference because it “honestly believed” that the employee had abused his taking of FMLA leave.

In Gurne v. Michigan Bell Telephone Co., Case No. 10-14666 (E.D. Mich., Nov. 15, 2011), an employee took FMLA on a day she was scheduled to work until 5:00 p.m. A co-worker reported seeing the employee at a birthday party for a mutual friend between 4:30 p.m. and 6:30 p.m.  The employer investigated, but was unable to determine if the employee was actually at the party before the end of her scheduled shift. The employer nevertheless terminated the employee. The court sided with the employee, finding that the employer could not establish that it “honestly believed” that the employee had abused FMLA because the employer’s investigation was not conclusive regarding whether the employee was at the party during her shift.

An employer’s “honest belief” about FMLA abuse should be supported by adequate investigation and supporting facts. The adequacy of the investigation may be subject to legal scrutiny, and a determination can be made on whether the employer was reasonable in the steps it took to form its belief about the employee’s conduct.

For a full discussion of the Capps v. Mondelez Global, LLC case, reference the link below: https://www.disabilityleavelaw.com/2017/02/articles/fmla/third-circuit-says-last-call-employee-terminated-caught-drinking-fmla-bed-rest/#more-2507

New California Disability and Leave Laws – Are You Ready for 2018?

With the turn of the year comes a wave of new California disability and leave laws.  Employers should review their existing policies and procedures to determine if they will be in compliance with these new laws—many of which will go into effect on January 1:

  • Parental Leave:  California will expand parental leave to small employers.  Current law requires that employers with 50 or more employees within 75 miles grant up to 12 weeks of unpaid leave to eligible employees who request time off to bond with a newborn child or a child placed in the employee’s home for foster care or adoption.  Effective January 1, California will extend this leave entitlement to employees who work for an employer with 20 or more employees within 75 miles.   More details can be found here.  Employers should ensure their policies are updated to account for this new leave entitlement.
    California and Local Sick Leave Laws:  Since the passage of the California Paid Sick Leave Law, various cities have enacted their own sick leave ordinances which pose additional requirements for employers.  Currently, the following cities in California have enacted sick leave ordinances: San Francisco, Los Angeles, San Diego, Oakland, Berkeley, Emeryville, and Santa Monica. Employers should revisit whether any of these ordinances apply to their organizations since very low thresholds of work trigger their application.
    Lactation Ordinance:  Effective January 1, San Francisco will expand existing federal and California laws regarding lactation in the workplace by requiring employers to provide employees with lactation rooms that are safe, clean, and free of hazardous materials; that contain a surface to place a breast pump and other personal items; that have a place to sit; and that have access to a refrigerator, sink, and electricity.  Employers should update their employee handbooks since they are now required to maintain a written lactation accommodation policy under the new ordinance.  More details about these requirements are discussed here.
  • Domestic Violence Leave Notice:  Current law requires employers with 25 or more employees to provide written notice to their employees to inform them of their rights to take protected leave for domestic violence, sexual assault, or stalking.  Employers are required to inform each employee of his or her rights upon hire and at any time upon request.  On July 1, 2017, the Labor Commissioner developed and posted online a form that employers may use to satisfy these new notice requirements.  Employers should review their new hire packets to ensure this notice is included.

Given the nuances of these new laws, employers should carefully review and revise its written policies, procedures, and new-hire packets as needed.  Please contact your Jackson Lewis attorney if you have any questions regarding your compliance with these new requirements.

Eleventh Circuit Upholds Alabama Cop’s Win in Pregnancy and FMLA Case

The U.S. Court of Appeals for the Eleventh Circuit has affirmed a jury verdict in favor of a former Alabama police officer on her pregnancy and Family and Medical Leave Act (FMLA) claims. Hicks v. City of Tuscaloosa, Ala., No. 16-13003 (11th Cir. Sept. 7, 2017). The Eleventh Circuit held that the Pregnancy Discrimination Act (PDA) bars bias against breastfeeding mothers and affirmed an award of $161,319.92 plus costs and attorneys’ fees to the plaintiff.

Former officer Stephanie Hicks claimed that, in violation of the PDA, she was transferred to a less desirable position and forced to quit after returning from maternity leave and requesting an accommodation to breastfeed. She also sued for interference and retaliation under the FMLA, claiming that after she returned from maternity leave she overheard her supervisor commenting to her captain about finding ways to write Hicks up and “get her out of here,” apparently because Hicks had taken her full 12 weeks of unpaid leave, which was longer than her supervisor wanted.

The police department argued that Hicks was reassigned because she had not been doing her job and she failed to meet with several confidential informants assigned to her by her new boss.

The three-judge panel held there was “sufficient evidence of discrimination” by the Tuscaloosa Police Department against Hicks when she was demoted from the narcotics division to a patrol assignment a mere eight days after returning from maternity leave. Not only was Hicks assignment changed, but her pay was cut, she would no longer have a vehicle, and she was required to work weekends. Moreover, Hicks alleged she was denied an accommodation for breastfeeding and then forced to resign due to the lack of accommodation when the police department placed her on an assignment that required her to wear a bullet-proof vest.

The Court sided with the plaintiff after concluding that “[m]ultiple overheard conversations using defamatory language plus the temporal proximity of only eight days from when she returned to when she was reassigned support the inference that there was intentional discrimination.” It also noted the new job duties required Hicks, who was breastfeeding at the time, to wear a ballistic vest all day long, which she claimed wasn’t possible, and when Hicks asked to be accommodated, she was told breastfeeding was not a condition that “warranted alternative duty” and told to either wear a larger size — which left dangerous gaps — or not wear a vest at all.

The jury awarded Hicks $374,000, but a magistrate judge reduced the award to $161,319.92 plus costs and attorneys’ fees, according to the opinion. On appeal, the Eleventh Circuit found “no reversible error on any issue” to warrant overruling the jury verdict. The panel also rejected the police department’s argument that Hicks did not mitigate her damages by seeking comparable work, as well as its challenge to the jury instructions.

This case highlights the importance of, among other things, properly analyzing employees’ requests for accommodations and ensuring that employee discipline is proper and consistent both before and after an employee takes protected leave.

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