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Unsettled Waters at the Accommodation of Last Resort

In 2019, we are poised to learn where the Fourth Circuit stands on reassignment as an accommodation—an issue that has split the Circuits. Before discussing where courts are divided, let’s start with the consensus.  First, the Americans with Disabilities Act (“ADA”) clearly requires employers to make reasonable accommodations to the limitations of an employee with … Continue Reading

How the Government Shutdown Impacts Employee Leave Requests

As of midnight December 21, 2018, 380,000 federal employees were placed on furlough.  An additional 420,000 are considered “excepted” and have continued working without pay.  Federal employers and employees should be aware of how the government shutdown impacts both paid time off requests as well as approved FMLA leaves. According to the Office of Personnel … Continue Reading

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. Up until now, the most common mistakes were addressed in this blog. Now that we have hit the twentieth post in this series, we are going to dig a bit deeper into the FMLA regulations to … Continue Reading

Appellate Courts Agree: Regular, Reliable Attendance Is Essential Function of Most Jobs

Recent decisions from the Second, Fifth, and Eighth Circuit Courts of Appeals exemplify the growing consensus amongst courts that even employees with a disability are generally required to comply with company attendance policies.  While employers may need to provide leave as a reasonable accommodation, many courts generally agree that regular, reliable attendance is an essential … Continue Reading

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 nineteenth in a series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration. Not carefully analyzing whether an employee is eligible for FMLA leave due to inpatient care … Continue Reading

‘Tis the Season: FMLA and Holidays

As we are in the heart of the holiday season, to avoid an unwanted gift from the Department of Labor, employers should ensure that they properly administer FMLA leaves taken during company holidays. Determining whether company holidays count towards an employee’s FMLA entitlement depends on whether the employee takes leave for an entire week or … Continue Reading

What Do You Mean I Can’t Require that an Employee Use PTO During FMLA Leave?

Since the FMLA came into existence, employers have been advised, where possible, to run FMLA concurrently with other leaves. Doing so prevents leave stacking. When reviewing FMLA policies, a common oversight we see is how employers handle the use of paid leave during FMLA. While the policies require employees to use earned vacation, sick or … Continue Reading

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 eighteenth in a series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration. Not recognizing when you might trigger the FMLA by being an “integrated employer” The FMLA … Continue Reading

Department of Labor Issues Updated FMLA Forms

On September 4, 2018, the Department of Labor issued new FMLA notices and certification forms. But don’t panic, the change was procedural in nature; no substantive changes were made to the forms. Under the Paperwork Reduction Act of 1995, the DOL is required to submit its forms for approval to the Federal Office of Management … Continue Reading

Pending California Legislation Alert! Senate Bill 937 Seeks to Require California Employers to Provide Lactation Facilities in the Workplace

If passed, California Senate Bill 937: Lactation Accommodation, will require employers to provide a lactation room, or location, in close proximity to the employee’s work space, and it must include prescribed features such as access to a sink and refrigerator. SB 937 also would deem denial of reasonable break time or adequate space to express … Continue Reading

Overtime Can Be An Essential Job Function

A recent decision from the District Court for the District of Nebraska serves as a reminder that overtime can be an essential job function. See McNeil v. Union Pac. R.R._ 2018 U.S. Dist. LEXIS 85250.  On May 21, 2018, Union Pacific Railroad Company’s (“Union Pacific”) motion for summary judgment was granted and the Court determined … Continue Reading

Medical Progress Needs to Be Assessed in Determining Whether an Individual Is Qualified.

A recently filed federal court case should serve as a reminder to employers that medical advances often make the impossible possible and, as a result, can make the unqualified qualified under ADA. Although the suit asserts a constitutional violation and not a claim under the ADA, the lesson is worth heeding by the conscientious non-governmental … Continue Reading

‘Safe Time’ Amendments to New York City Paid Sick Leave Effective May 5, 2018

Amendments to the New York City “Earned Safe and Sick Time Act” (ESTA) went into effect on May 5, 2018. Eligible employees under the ESTA will be able to use paid time off for circumstances resulting from the employee or a covered family member of the employee being the victim of family offense matters, sexual … Continue Reading

Must an Employer Pay for Frequent FMLA Breaks?

Is it compensable time when an employee takes frequent, 15-minute breaks each hour due to the employee’s serious health condition? Today, the United States Department of Labor (DOL) answered this question in a hot-off-the-press opinion letter, verifying that FMLA-covered breaks are not compensable. In today’s opinion letter, the DOL confirmed that frequent, 15-minute breaks taken … Continue Reading

Sick Leave Entitlements on the Rise in CA? A Pending CA Bill Is Looking to Do Just That.

Just three years after the enactment of California’s paid sick leave law under the Healthy Workplace Healthy Family Act of 2014 (AB 1522), a new bill has been introduced seeking to increase the amount of sick leave employers must provide employees under California law. The bill, AB 2841, was introduced on February 16, 2018, by … Continue Reading

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 fourteenth in a series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration. Not fully analyzing the impact of an adverse employment action taken close in time to … Continue Reading

Louisiana Court of Appeals Highlights the Need For Clear Vacation Policies

The Louisiana Court of Appeals—Fourth Circuit, recently overturned a trial court’s determination that an employee of a pest control company was not entitled to the payout of his accrued, but unused, vacation leave. Contrary to the findings of the trial court, the Court found that the terms of the policy were ambiguous and therefore, the … Continue Reading

Let the Madness Begin – March Madness that Is

March Madness begins in just a few days.  It’s that glorious time of year when college basketball teams from around the country (and their fans) are filled with hope and excitement.  Who will make it to the final four?  Who will win the championship game?  Brackets are being completed and upsets are being selected. Experts … Continue Reading

Pending California Legislation Alert! Recently Introduced Bill Seeks to Protect Medicinal Marijuana Users from Employment Discrimination in California

Although both medicinal and now recreational consumption of marijuana have been legalized in California, this legalization did not impact an employer’s right to discipline or even terminate employees for marijuana use. That could change for medical marijuana users if a bill pending before the California legislature becomes law.… Continue Reading

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 … Continue Reading

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 … Continue Reading
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