Bernalillo County, New Mexico Adopts Paid Leave For “Any Reason” Law

By Danny W. Jarrett and Tara K. Burke on August 23, 2019

The patchwork of paid leave laws around the country is getting increasingly more intricate as local governments adopt mandatory paid time off laws. This week, Bernalillo County, New Mexico added its patch adopting the first paid time off ordinance in New Mexico. Beginning on July 1, 2020, the Employee Wellness Act will require employers within the unincorporated limits of Bernalillo County to permit most employees to accrue paid time off and use that paid time off for any reason. While the ordinance was originally considered earlier this summer as a more traditional paid sick leave law, it was amended to allow for employees to use the time off for “any reason.” The County is following what looks to be a trend started by Maine and Nevada which both passed laws this summer allowing employees to use mandatory accrued paid time off for any reason.

Under Bernalillo County’s new law, covered employers must permit employees to accrue a minimum of one hour of earned paid time off for every 32 hours worked, or employers may choose to use a frontload method and provide for accrual of all earned paid time off at the beginning of the year. The law sets out a three-year phase in period. Employers must allow employees to accrue up to 24 hours of paid time off as of July 1, 2020, 40 hours of paid time off as of July 1, 2021, and 56 hours of paid time off as of July 1, 2022 and thereafter. To be covered by the ordinance, employers must have “a physical premises within the unincorporated limits of the County, which employs two or more employees within the unincorporated limits of the County.”

Employees are required to provide notice to employers “as soon as practicable” for foreseeable leave and “when possible” schedule the use of paid leave “in a manner that does not unduly disrupt the operations of the employer.” Employers, however, may not require advance notice for employees to use paid leave for “emergency or illness.”

Employees may file complaints against employers with the County who is tasked with investigating and adjudicating those complaints. Under the final adopted ordinance, employees are required to exhaust these administrative remedies before filing a claim in court.

Employers with employees working within the unincorporated limits of Bernalillo County, primarily including areas in the South Valley and the East Mountains, should prepare for the following: to provide this paid time off to employees beginning in July 2020, to update their policies, and to provide a notice to all employees that complies with the law. Employers should watch for the County to publish a poster in English and Spanish.

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 Governor Signs Paid Family and Medical Leave Law

By Mark A. Crabtree and Daniel J. Moses on August 21, 2019

Oregon’s paid family and medical leave law was signed by Governor Kate Brown on August 9, 2019. Eligible workers will be permitted to take up to 12 weeks of paid leave under the new law beginning January 1, 2023.

When the law goes into effect, Oregon will become the eighth state to adopt legislation requiring paid family and medical leave for eligible employees. Oregon’s program is the most generous and inclusive state law passed to date, with low-income workers receiving 100 percent of their wages while on eligible leave. Benefits are capped at 120 percent of the state average weekly wage (currently, approximately $1,200 a week). You can read more about it here.

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.

DOL Opines That Parent’s Attendance at IEP Conference Warrants FMLA Leave

By Teresa Burke Wright on August 20, 2019

In an August 8, 2019 opinion letter, the U.S. Department of Labor’s Wage and Hour Division (WHD) shed some light on what counts as “caring for” a family member under the FMLA. In Opinion Letter FMLA2019-2-A, the WHD found that a parent was entitled to take intermittent FMLA leave to attend a meeting at her child’s school to discuss the child’s Individualized Education Program (“IEP”). Such meetings were held four times per year and were attended by a number of professionals, including a speech pathologist, school psychologist, other therapists, teachers and school administrators. The parent had been told by her employer that attendance at these meetings was not covered by the FMLA.

The FMLA allows eligible employees to use protected leave to “care for” a family member with a serious health condition. 29 U.S.C. §2612. The Department of Labor’s FMLA regulations, however, provide little guidance on what specific circumstances count as “caring for” a family member. The regulations acknowledge such care “encompasses both physical and psychological care,” and includes situations where the “family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety.” The regulations state that FMLA leave can be used to transport a family member to a medical appointment, as well as “substitut[ing] for others who normally care for the family member,” or “to make arrangements for changes in care, such as transfer to a nursing home.” “Psychological comfort and reassurance” expressly counts as care.

Courts have not always agreed on how to apply these rules. There are inconsistent decisions on whether attending a “dream trip” or vacation with a seriously ill family member qualifies as FMLA leave. Courts generally have found that handling errands or housework for a seriously ill family member does not qualify as “caring for” that individual under the FMLA. Generally, attending care meetings with health care personnel has been found to qualify, and one court held that attendance at a ceremony for an employee’s terminally ill parent also counted as “caring for” the family member.

In the opinion letter, the WHD found that attendance at the IEP meetings qualified as “care for a family member” because part of the purpose of these meetings was to make arrangements for changes in care. The WHD pointed to a previous opinion letter, in which the Division had found that attending “care conferences” related to a parent’s health condition qualified for FMLA leave. This was because the employee’s attendance at these conferences, during which the individual’s health care providers (nurses, dieticians, physical therapists, activity directors, doctors, etc.) discussed the individual’s medical condition, needs, incidents, and well being was “clearly essential” to the employee’s ability to provide appropriate physical or psychological care. In the case of the IEP meeting, similarly, the Division found that the parent’s attendance was “essential to [her] ability to provide appropriate physical or psychological care” for her children, since she “attends these meetings to help participants make medical decisions concerning [her] children’s medically-prescribed speech, physical, and occupational therapy; to discuss [her] children’s wellbeing and progress with the providers of such services; and to ensure that [her] children’s school environment is suitable to their medical, social, and academic needs.”

Employers should tread lightly before denying requests for FMLA leave involving less conventional forms of care. Depending on the circumstances, attendance at meetings, accompanying a family member on travel, and being present at special events can qualify for FMLA leave. Rather than take a restrictive view of what counts as “caring for” a family member, employers should review current guidance from the WHD and case law in their jurisdiction, and remember that “caring for” a family member is not limited to direct, physical care.

San Francisco Employers May Have to Pay More in Paid Parental Leave Benefits in 2020

By Cepideh Roufougar and Kate L. Brown on August 19, 2019

As Bay Area employers are well aware, San Francisco has several local employment-related ordinances that provide additional benefits to individuals performing work within the geographical boundaries of the City. One such benefit is paid parental leave. Please find the rest of this article on our California Workplace Law Blog here.

What Am I Doing Wrong?? Common FMLA Mistakes

By Sheri L. Giger on August 19, 2019

“What did I do wrong?” and “Am I doing this correctly” are frequent questions from clients regarding FMLA administration. This is the 25th blog in this series, which digs into the FMLA regulations and related issues to address discrete mis-steps that can result in legal liability.

Delaying designation of FMLA-qualifying leave or designating more than 12 weeks of leave.

In a recent opinion letter, the U.S. Department of Labor (“DOL”) Wage and Hour Division clarified its position on two points: (1) an employer may not delay the designation of FMLA-qualifying leave as FMLA leave, and (2) an employer is prohibited from designating more than 12 weeks of FMLA leave (or 26 weeks for military caregiver leave).

The question posed to the DOL was whether it is permissible for an employer to delay the designation of FMLA-qualifying paid leave as FMLA leave or to provide additional FMLA leave beyond the 12-week FMLA entitlement, because some employers voluntarily permit employees to exhaust some or all available paid leave prior to designating FMLA leave.

What can we learn from this opinion letter?

Do not delay the designation of FMLA-qualifying leave. It is the DOL’s opinion that once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave. Therefore, if an employee requests to “delay” FMLA leave or to “not use” FMLA until a later point, and the leave is otherwise FMLA-qualifying, granting such an employee request runs counter to this DOL opinion letter. An employer may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation.
Do not designate more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave. The DOL notes that an employer must observe any employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established by the FMLA. However, providing such additional leave outside of the FMLA cannot expand the employee’s 12-week (or 26-week) entitlement under the FMLA. The DOL provides the example that if an employee substitutes paid leave for unpaid FMLA leave, the employee’s paid leave counts towards his or her 12-week (or 26-week) FMLA entitlement and does not expand that entitlement.

This provides an employer with clear guidance on how it can respond when employees request that FMLA designation be delayed until after they use available paid leave. The full DOL opinion letter can be found here.

Do The DOL’s FMLA Forms Work For You? Now is Your Chance to Speak Up

By Catherine A. Cano on August 16, 2019

On August 5, 2019, the Department of Labor (“DOL”) published proposed revisions to the Wage and Hour Division’s Family and Medical Leave Act (“FMLA”) forms with the stated goal “to increase compliance with the FMLA, improve customer service, and reduce the burden on the public by making the forms easier to understand and use.”

Many revisions are stylistic or organizational. The proposed forms have color-coded sections specific to the employee, the employer and health care provider, and include additional headings and numbering to simplify the forms. For example, the proposed Designation Notice (WH-382) first addresses whether the employee’s request is approved or denied, and then directs the employee to either Section II (“Additional Information Needed”) or Section III (“FMLA Leave Approved”). The current Designation Notice is a single page with multiple sections separated only by bold lines.

Some revisions give additional cues to both employees and employers about the legal nuances of the FMLA. The proposed Notice of Eligibility and Rights & Responsibilities (WH-381) includes a section dedicated to substitution of paid leave. It advises employees that the FMLA allows the employer to require the employee to use available paid leave during the employee’s FMLA absence. The proposed form expressly lists several types of concurrent leave that might be in play, such as short- or long-term disability, workers’ compensation, or state-required leave. The proposed Designation Notice (WH-382) explains the difference between an “incomplete” certification and an “insufficient” certification. The proposed certifications for leave involving a third party (WH-380F, WH-384, WH-385, WH385-V) replace the open-ended request for a description of the reason for the leave with more specific examples for the employee to select (i.e., the Certification of Health Care Provider for Serious Health Condition of the Family Member identifies transportation, physical care, psychological comfort, assistance with basic medical, hygienic, nutritional or safety needs, and other).

New formatting is intended to eliminate the current duplicative questions, and streamline the process for health care providers. The current medical certification forms (WH-380-E and WH-380-F) include a series of “yes” or “no” questions (e.g., “Will the patient need to have treatment visits at least twice per year due to the condition,” “Is the medical condition pregnancy?”). By contrast, the proposed forms WH-380-E and F request that the health care provider check at least one of six boxes (“Inpatient Care,” “Incapacity Plus Treatment,” “Pregnancy,” “Chronic Conditions,” “Permanent or Long Term Conditions,” and “Conditions Requiring Multiple Treatments”), and only provide medical information related to the selected categories. Thus, the health care provider would confirm only once that the employee or family member has a serious health condition.

The proposed forms also provide additional instruction and definitions. For example, the terms “next of kin” and “in loco parentis” are defined in the forms. The forms define “serious health condition” for health care providers, and include examples of certain conditions that might meet the definition (i.e., Alzheimer’s disease is a permanent or long-term condition, while diabetes or migraine headaches may qualify as chronic conditions).

The proposed revised forms are:

WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition

WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition

WH-381 Notice of Eligibility of Rights & Responsibilities

WH-382 Designation Notice

WH-384 Certification of Qualifying Exigency for Military Family Leave

WH-385 Certification for Serious Injury or Illness of Covered Servicemember—for Military Family Leave

WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave

The DOL is accepting public comments until October 4, 2019. Contact a Jackson Lewis lawyer for additional information regarding these proposed changes and submitting comments to the DOL.

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.

With Broad FMLA “Benefits” Interpretation, Sixth Circuit Faults “No-Fault” Attendance Policy

By Jonathan A. Roth on August 10, 2019

Employers must carefully navigate Family and Medical Leave Act (“FMLA”) pitfalls when administering attendance policies. As illustrated by the Sixth Circuit’s decision in Dyer v. Ventra Sandusky, LLC, No. 18-3802 (6th Cir. Aug. 8, 2019), one misstep can lead to potential FMLA liability.

Background

Dyer worked as a technician for automotive supplier Ventra Sandusky. Dyer suffered from migraine headaches that often prevented him from working.

Ventra Sandusky’s no-fault attendance policy assessed points to employees for absences. At 11 points, the policy called for termination. The policy expressly excluded FMLA absences from the point-accumulation system, and it was undisputed that Dyer never received any points for taking FMLA leave.

Ventra Sandusky also maintained an Attendance Point Reduction Schedule—allowing employees to reduce attendance points by achieving perfect attendance for 30 days. This policy treated time off for vacation, bereavement, jury duty, military duty, union leave, and holidays as days “worked” toward the 30-day perfect attendance requirement, and such absences did not stop or “reset” the 30-day clock. In contrast, the point reduction schedule did not count FMLA leave, and other kinds of unpaid leave such as disability, as time “worked” toward the 30-day perfect attendance streak. For example, if an employee worked three days, took the fourth day off for an FMLA-qualifying purpose, and returned to work on the fifth day, his attendance streak restarted at one day worked, rather than four.

Dyer used intermittent FMLA due to his migraines on several occasions. Ventra Sandusky always approved his FMLA leave, and he was never assessed any points for taking FMLA leave. In 2016, Ventra Sandusky terminated Dyer for accumulating 12 points. Claiming that he would have stayed below 11 points, and thus not been terminated, if his perfect attendance streak did not stop and restart each time he took FMLA leave, Dyer sued Ventra Sandusky for FMLA interference. The trial court granted summary judgment in favor of Ventra Sandusky.

The Sixth Circuit reversed and remanded. The Court relied on the regulations interpreting the FMLA, which provide “[b]enefits accrued at the time leave began . . . must be available to an employee upon return from leave.” 29 C.F.R. § 825.215(d)(2). The Court held that point reduction could be viewed as an employment benefit, the accrual of which must be available to an employee upon return from leave. Thus, “Dyer’s FMLA leave could freeze the accrual of attendance but could not reset it; upon returning, Dyer was entitled to the days of attendance he had accrued when leave began and to continue accruing them in the same way.” The Court rejected Ventra Sandusky’s argument that no benefit actually accrued until the 3oth day when an attendance point was dropped.

In addition, the Court explained that Dyer could prevail on his claim by showing Ventra Sandusky treated FMLA leave less favorably than other equivalent leave statuses. There were disputed issues of material fact as to what constituted “equivalent” leave under the policy and whether equivalent leave statuses similarly reset the point-reduction clock.

Takeaway

While employees are not entitled to accrue benefits while on FMLA leave, the benefits they accrued before taking leave must be available when they return. The Sixth Circuit and other courts have broadly interpreted the term “benefits accrued.” With this expansive interpretation in mind, employers should closely examine their policies and procedures to ensure that an employee’s FMLA leave does not negatively affect accrued benefits. Employers also must be careful not to treat FMLA leave less favorably than other equivalent leave statuses—bearing in mind that whether a type of leave is “equivalent” may be up for debate.

Employer’s Additional Notice Requirement for Requesting FMLA Leave Dooms Attempt to Dismiss Employee’s Interference Claims

By Tasos C. Paindiris on August 6, 2019

Employees who take FMLA leave may be required to comply with the employer’s usual and customary notice and procedural requirements for requesting leave. If the employee does not follow these requirements, the employer may delay or deny FMLA-protected leave. But what happens if the employer’s policy has different notice requirements for FMLA leave than for other time off? What if the FMLA requirements are more burdensome than the requirements for non-FMLA leave? In Moore v. GPS Hospitality Partners IV, LLC, etc., the United States District Court for the Southern District of Alabama tackles this issue (S.D. Ala. June 3, 2019).

The employee repeatedly told her managers that she would need leave to take care of her hospitalized mother. Nevertheless, she was scheduled for work and she received a warning for her failure to show up for work. After receiving the warning Ms. Moore learned about the FMLA and she decided to seek leave again. She informed her managers that she wanted FMLA leave. The employer’s policy required an employee to notify her supervisor and Human Resources to request FMLA leave. A manager provided Ms. Moore with information regarding the person in Human Resources to contact for FMLA leave. Ms. Moore claims she told the manager she was unclear on what to do with this information yet she was not provided with any assistance. Ms. Moore was later terminated after she took additional time off.

Ms. Moore alleged that her former employer interfered with her FMLA rights and retaliated against her for exercising those rights. The employer argued that Ms. Moore failed to follow the “usual and customary notice and procedural requirements” for requesting FMLA leave. However, the defendant’s policy for other forms of leave only required employees to make requests to a supervisor and did not have the additional requirement of notifying Human Resources. The Court held that the requirements for requesting FMLA leave cannot be any more onerous than the requirements for requesting non-FMLA leave. The requirement that employees must follow “usual and customary notice and procedural requirements” to obtain FMLA does not permit employers to deny leave based on a failure to comply with more stringent notice requirements applicable only to FMLA requests. Here the only additional requirement for FMLA leave was to contact Human Resources in addition to the supervisor yet that additional burden was enough for the Court to deny the employer’s attempt at dismissal of the claim.

Whether an employee complied with the employer’s usual and customary notice requirements is an issue that often arises in the context of intermittent leave and/or where the employer uses a third party to administer its FMLA. While the FMLA regulations clearly authorize employers to adopt “usual and customary notice and procedural rules for requesting leave, absent unusual circumstances,” this case suggests employers should closely review any such rules to determine whether they place impermissible additional burdens on employees seeking FMLA leave.

Puerto Rico Enacts Leave for Victims of Domestic Violence, Sexual Harassment and Assault

By Sara E. Colón-Acevedo and Maralyssa Álvarez-Sánchez on August 6, 2019

Employees in Puerto Rico may take up to 15 days of unpaid leave each calendar year to address situations related to domestic or gender-based violence, child abuse, sexual harassment in employment, sexual assault, lewd acts, or felony stalking under a new law. The new “Special Leave” is in addition to any other leave to which the employee might be entitled under law. The victim need not file a police report to be entitled to take Special Leave. The perpetrator of the abusive conduct is not entitled to take leave under the new law. Read more about the new law here.

Washington Weighs in on Obesity Discrimination

By Michael A. Griffin, Patricia Anderson Pryor and Jonathan M. Minear on August 2, 2019

The state of Washington has weighed in on the debate as to whether obesity is a disability under disability discrimination laws. In Taylor v. Burlington Northern Railroad Holdings Inc., a case that wound its way through the courts for nine years, the United States Court of Appeals for the Ninth Circuit certified this question to the Washington Supreme Court: “Under what circumstances, if any, does obesity qualify as an ‘impairment’ under the [WLAD]?” The Washington Supreme Court responded by holding that obesity is always an impairment under the Washington Law Against Discrimination (WLAD) because it is a “’physiological disorder, or condition’ that affects multiple body systems listed in the statute.” Therefore, an employer who takes employment action against an individual because the employer perceives the individual to be obese, may run afoul of the WLAD.

The court determined that the WLAD is more expansive than the Americans With Disabilities Act (ADA) and expressly refused to follow the rulings of some federal courts (interpreting the ADA) which hold that obesity can be a disability only if it is caused by a separate underlying physiological disorder. Unlike the ADA, under the WLAD an impairment can constitute a “disability” regardless of whether it limits life activities, if it (a) is medically cognizable or diagnosable, (b) exists as a record or history, or (c) is perceived to exist whether or not it exists in fact. In this case, the employer perceived the individual to be disabled because it called him obese, which the court determined is a medically cognizable and diagnosable condition.

In Taylor, Casey Taylor applied for the job of electronic technician at the BNSF Railway. He received a job offer, contingent on passing a physical exam and medical history questionnaire. He met the minimum physical demands of the job’s essential functions. However, a medical exam revealed that he had a Body Mass Index of more than 40, which BNSF considered to be morbidly obese and a threshold for further screening. BNSF decided not to hire him because it could not determine if he was medically qualified for the job based on the significant health and safety risks associated with his morbid obesity and uncertain status of his knees and back. The company offered to reconsider their hiring decision if he paid for medical testing, including a sleep study, blood work, and an exercise tolerance test, which he could not afford. His only other option was to lose 10% of his weight and keep it off for six months. Instead, he sued BNSF for discrimination based on a perceived disability.

The Taylor case was a perceived disability case and as such, its holding is not as broad as some report. Although the court determined that “obesity” is always an impairment, it did not hold that accommodation is always required simply because someone is diagnosed as obese. The court correctly noted that in a failure to accommodate case, the plaintiff would need to show limitation in addition to showing an impairment. In addition, the court noted that there is a difference between obesity and merely being overweight. Obesity is a medically diagnosable disorder which, according to the court, always affects the systems of the body. The court distinguished this from a person with a high body mass index (BMI) but whose systems were not affected. The court concluded that the latter person “would not have obesity and therefore would not be covered by this opinion.”

This decision adds a new layer of protection to individuals who have obesity in the state of Washington. In order to ensure compliance, Washington employers should train their managers and human resources teams on the impact of this decision. This decision may impact (1) how pre-employment (and other) medical inquiries are handled; (2) when accommodations need to be provided; (3) whether changes to job requirements are necessary to make sure that employees are not being excluded simply because of obesity; (4) how the employer responds to claims of harassment based on an employee’s weight; and even (5) customer service training (as the ruling may be extended beyond the employment setting). As with any significant legal development like this, consulting with your employment and labor counsel would be prudent.