The federal appeals court in Chicago has provided helpful guidance on employers’ obligation to accommodate qualified individuals’ medical restrictions under the Americans with Disabilities Act (ADA) in a case involving a correctional officer.
Read more here.
The new year brings new laws for employers. The Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP For Nursing Mothers Act) were adopted when President Joe Biden signed the Consolidated Appropriations Act, 2023 on Dec. 29, 2022. Read our full article for practical guidance for employers.
Starting January 1, 2023, Colorado employers must comply with Colorado’s Family and Medical Leave Insurance (FAMLI) Act, which requires nearly all employers and all employees to contribute to the state’s paid family and medical leave program.
FAMLI Benefits for Colorado Employees
Colorado’s FAMLI program will provide Colorado employees with up to twelve weeks of paid time off for certain qualifying life events, similar to federal Family and Medical Leave Act (FMLA) qualifying events. Qualifying events include:
Qualifying employees must have also earned $2,500 from any employer over the previous year for work performed in Colorado. FAMLI does not necessarily provide 100% of an employee’s salary while on leave. Employees will receive between 37% and 90% of their weekly wages, up to $1,100 per week, while on leave.
How is FAMLI Funded?
Similar to unemployment insurance, the FAMLI program is funded through employer and employee “premium” contributions. Colorado employers with 10 or more employees (regardless of where located) must contribute at least 0.45% of the employee’s wages each pay period and process the employee’s own .45% premium deduction for a total 0.9% of what the employee earns going to FAMLI. Employers may elect to cover more than half of the required premium as a benefit to the employee, but cannot contribute less. Employers and employees can estimate their premium liability here and view a sample paystub with FAMLI deductions here.
Private employers may apply for an exemption from FAMLI by submitting a private plan so long as it provides equal or greater benefits and protections than the FAMLI plan to all employees. Employers may choose to work with a private insurance company to manage their private plan or manage their own self-insured private plan secured with a surety bond. Any private plan must be approved by the Colorado Department of Labor and Employment’s Family and Medical Leave Insurance (FAMLI) Division before a company can be exempt from paying the above-described premiums. Until a private plan is approved, employers must pay premiums to the FAMLI Division. Once approved, the employer may seek reimbursement for those previously paid premiums.
FAMLI in 2023
Receiving FAMLI Benefits in 2024
FAMLI benefits become available to employees on January 1, 2024. Eligible employees will submit FAMLI requests through the FAMLI Division for benefits. The FAMLI Division will facilitate the entire application and payment process with the employee. While on leave, employees will be paid through the FAMLI program. Employers may supplement this payment if the employee requests that other available benefits, such as PTO or STD, supplement the FAMLI payments. Employees should provide employers notice of when they will be applying for FAMLI, but if they do not, the FAMLI Division will notify the employer of the employee’s request.
Employers can also start preparing for the full FAMLI program in 2024 by understanding the interplay of FAMLI and other protected leave and benefits.
If you have any questions about the new Colorado FAMLI program and employer obligations, please contact Melisa Panagakos at melisa.panagakos@jacksonlewis.com.
The Paid Leave Oregon program commences on January 1, 2023. As an initial step, most Oregon employers must alert employees about the program and begin paying into the state insurance plan. The law requires employers post the Oregon Employment Department’s model notice at the worksite and distribute the same notice to remote workers.
Additionally, for most employers, the law requires Oregon employers withhold and remit contributions to the program starting January 1, 2023. Total contributions are one percent of each employee’s gross wages, up to an annual maximum of $132,900. Employers with 25 or more employees are required to pay 40% of the contribution with employees paying 60%, although employers of all sizes may choose to pay a portion, or all, of the premium on behalf of employees. Employers with fewer than 25 employees are not required to contribute the employer portion of the premium, but are still responsible for collecting the employees’ contribution.
Employers have the option of obtaining state approval for an equivalent plan. The Oregon Employment Department has prepared a check list and application form for equivalent plans. Employers seeking approval for an equivalent plan must offer benefits to employees that are equal to or greater than those provided by the state through the Paid Leave Oregon program. Once approved by the state, an equivalent plan becomes effective at the start of the next calendar quarter.
Benefits under the Paid Leave Oregon program become available to employees on September 3, 2023. Benefits are available to part-time, full-time, and seasonal employees that experience a family or medical event. Eligible employees can take up to 12 weeks off from work in a benefit year, and in some situations up to 14 weeks. The state will make eligibility determinations and pay eligible employees out of the state fund. An employee’s weekly benefit amount is determined by comparing the employee’s salary against the state’s average weekly wage. In 2023, the Department’s designated “average weekly wage” is $1,224.82. Employees who earn less than 65% of the average weekly wage will receive full wage replacement during the leave period. Employees who earn more than 65% of the average weekly wage will receive additional amounts, up to 120% of the state’s average weekly wage (currently approximately $1,469).
While employees apply directly to the Department to initiate a benefits claim, employers may require advance notice from any employee planning or taking leave. Restoration and reinstatement rights vary based on a variety of factors including but not limited to size of the employer and length of employment of the employee.
If you have questions about how the Paid Leave Oregon program or other leave laws and programs impact your organization, please contact a Jackson Lewis attorney.
Vermont will join its neighboring state New Hampshire in implementing a voluntary paid family and medical leave insurance program.
Read more here.
On November 30, 2022, the New York State Department of Health (NYSDOH) updated its Advisory on Return-to-Work Protocols for Healthcare Personnel with SARS-CoV-2 Infection or Exposure to Sars-CoV-2. This new guidance supersedes previous New York guidance to be consistent with recommendations published by the Centers for Disease Control and Prevention (CDC).
For recommendations on healthcare providers returning to work following infection with SARS-CoV-2 or exposure to SARS-CoV-2, New York employers should review the CDC’s Interim Guidance for Managing Healthcare Personnel with SARS-CoV-2 Infection or Exposure to SARS-CoV-2. With the adoption of the CDC’s guidance, the most significant change for New York healthcare employers is that there is no longer a distinction between vaccinated and unvaccinated healthcare workers when it comes to returning to work following exposure to COVID-19. Work restrictions are not necessary for most asymptomatic healthcare providers following exposure, regardless of vaccination status. Healthcare employers should review the CDC’s guidance in full for recommendations about testing and other protocols.
As a reminder, when it comes to returning to work following infection, there are important distinctions depending on the severity of the healthcare provider’s symptoms and whether the healthcare provider is immunocompromised. NYSDOH continues to align with the CDC’s return to work recommendations for healthcare providers which recommends an isolation period of 10 days after symptoms first appeared or after at least 7 days with a negative viral test following the testing protocol described by the CDC if a conventional strategy is used. Healthcare employers should review the additional recommendations included in the CDC guidance including detailed guidance for healthcare providers who have more severe symptoms or are immunocompromised.
The NYSDOH permits healthcare providers who are experiencing or anticipating staffing shortages due to COVID-19 to utilize contingency and crisis strategies in the CDC’s Strategies to Mitigate Healthcare Personnel Staffing Shortages which may allow healthcare providers to return to work sooner than under the conventional guidance. The NYSDOH advises that transition from conventional to contingency to crisis strategies should be based on ability to provide essential services, as determined by the facility. Healthcare providers, with some exceptions, are directed to notify the NYSDOH if “crisis” strategies are required.
New York healthcare facilities may want to consider reviewing their policies and practices in light of this updated guidance. If you have questions about your obligations, please reach out to Jackson Lewis attorneys.
The Michigan Department of Labor and Economic Opportunity (LEO) has provided guidance on the upcoming changes to the state’s minimum wage rates in light of the Michigan Court of Claims decision in Mothering Justice v. Nessel, No. 21-000095-MM (July 19, 2022).
Read more here.
One of the many difficult issues employers face under the Americans with Disabilities Act (ADA) is determining what information a disabled employee must provide to an employer to trigger the employer’s duty to accommodate a disability. The U.S. Court of Appeals for the Eleventh Circuit addressed that question for the first time in Owens v. Georgia, No. 21-13200 (11th Cir. Nov. 9, 2022).
While the Court was evaluating a claim under Section 504 of the Rehabilitation Act of 1973, the ADA is construed consistent with the Rehabilitation Act. The Court has provided employers some guidance to assist with navigating the complex waters surrounding the interactive process between the employer and employee to determine reasonable accommodations.
The Eleventh Circuit has jurisdiction over Alabama, Florida, and Georgia.
Background
In 2016, Nicole Owens began working for the Georgia Governor’s Office of Student Achievement (GOSA) as a web content specialist. In early 2018, Owens informed GOSA that she had a high-risk pregnancy. She took and exhausted her Family and Medical Leave Act (FMLA) leave entitlement shortly before giving birth. Subsequently, Owens notified her immediate supervisor that she was experiencing childbirth-related complications. Owens provided a doctor’s note advising that she “delivered a baby by cesarean section,” that she was “doing well,” and that she “may return to work via tele-work from her home.”
GOSA’s executive director believed this note qualified as a medical release to return to work and approved the request to work from home. However, she did not believe that Owens’ request to work from home was due to any medical complications that would prevent her from working in the office. Rather, she allowed Owens to telework temporarily so she could make childcare arrangements.
Thereafter, Owens continued to have post-delivery medical appointments and kept her supervisor apprised of her status. Owens provided a second doctor’s note dated September 11, 2018, which advised that she “may return to work November 5, 2018” and “may continue to telework at home until then.”
GOSA determined that additional medical documentation was needed to determine whether any accommodations other than working from home were reasonable. GOSA’s Human Resources Department sent Owens accommodation paperwork for her doctor to complete. In the following weeks, GOSA asked Owens to provide the completed accommodation paperwork, but she failed to do so explaining that she was unable to “expedite” the “internal processes” of the doctor’s office. Subsequently, GOSA issued Owens a final directive advising that her “[f]ailure to provide the completed reasonable accommodation documentation” by October 10, 2018, or “to return to the worksite” by October 11, 2018, “may result in termination of [Owens’] employment.”
On October 11, 2018, Owens notified HR that she had not received her medical documentation and that she would not be returning to work onsite that day. On that same date, GOSA terminated Owens’ employment for her failure to adhere to GOSA’s directive.
Owens brought claims against GOSA alleging failure to accommodate and retaliation under the Rehabilitation Act and discrimination under the Pregnancy Discrimination Act. The District Court granted summary judgment in favor of GOSA, finding Owens never triggered GOSA’s obligation to accommodate her because Owens failed to identify a specific disability or explain how remote work would accommodate it. Further, the court found that, even if Owens triggered GOSA’s duty to accommodate her, Owens was responsible for the breakdown in the interactive process. As to the remaining claims, the court found that Owens failed to demonstrate GOSA’s reasons for terminating her employment were a pretext for discrimination or retaliation.
Court’s Decision
On appeal, the Eleventh Circuit affirmed the lower court’s dismissal of the case. It held that to request a reasonable accommodation, an employee must (1) identify the specific disability and (2) suggest how the accommodation will alleviate the workplace challenges posed by the specific disability.
Even though Owens made a request for accommodation (teleworking), the appeals court said, she failed to put her employer on notice of the disability for which she sought an accommodation and failed to provide enough information to allow the employer to understand how the accommodation would address the limitations her disability presented.
The Eleventh Circuit noted that neither childbirth nor pregnancy qualifies as a disability. Owens’ childbirth-related complications may have been caused by or may have caused a disability, but she did not identify what that disability was in any of her communications with GOSA.
Because Owens failed to identify a disability, she similarly failed to explain how her request to telework would accommodate her disability. Her doctor’s notes were inadequate, because they did not explain how her requested accommodation would alleviate any physical or mental limitation.
The Eleventh Circuit acknowledged that while employees, when requesting an accommodation, are not required to provide detailed or private information about a disability, they must explain generally how an accommodation would assist them with overcoming a physical or mental impairment.
Key Takeaways
The information that an employee must provide will depend on the particulars of each situation. Sometimes, there is a clear connection between the disability and the requested accommodation, such as an employee with an obvious mobility impairment seeking accommodation for access to a workstation. However, where the link between a person’s physical or mental limitations and the requested accommodation is unclear, the Eleventh Circuit determined that it is reasonable to require the employee to specifically inform the employer about how the accommodation sought will address the limitations before requiring the employer to initiate the interactive process. Simply providing a doctor’s note requesting an accommodation is not enough. The documentation provided by the employee (or employee’s doctor) must identify the specific disability and explain how the accommodation would alleviate the restrictions posed by the disability.
The Eleventh Circuit also determined that failure to timely return accommodation paperwork can be a legitimate non-discriminatory and non-retaliatory reason to terminate an employee’s employment. Employers should clearly establish deadlines to return or complete accommodation paperwork and communicate the consequences of failing to timely do so. When enforcing deadlines, however, an employer should be flexible if the employee is making good faith efforts to obtain the necessary information.
The Eleventh Circuit’s opinion provides helpful guidance for employers. Of course, the various circuit courts sometimes differ on how legal issues should be analyzed. If you have questions regarding how best to handle a particular request for accommodation and return to work, please reach out to Jackson Lewis attorneys.
On November 21, 2022, New York Governor Kathy Hochul signed a law clarifying that it is unlawful for an employer to penalize an employee for any absence protected under federal, state or local law. (S.1958/A.8092). The law goes into effect on February 19, 2023.
This new law amends Section 215 of New York Labor Law by protecting workers from being penalized or in any manner retaliated against for taking legally protected absences. There are a myriad of federal, state and local laws that entitle New York employees to paid and unpaid time off from work including the federal Family and Medical Leave Act, the New York Paid Family Leave law, the New York Paid Sick Leave law and New York City Earned Safe and Sick Time Act to name just a few. Under the amended law, when an employee is absent for a legally protected reason, employers are prohibited from “assessing any demerit, occurrence, any other point, or deductions from an allotted bank of time, which subjects or could subject an employee to disciplinary action, which may include but not be limited to failure to receive a promotion or loss of pay.” Violations of the law can lead to significant civil penalties and damages.
New York employers should review their attendance and leave of absence policies to ensure compliance with this new law. If you have questions about your obligations, please reach out to the Jackson Lewis attorney with whom you regularly work.
The legal landscape around abortion rights has changed greatly following the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, No. 19-1392 (June 24, 2022), which ended a nearly 50-year precedent protecting the right to abortion and opened the door for states to implement and enforce new laws on access to abortion. As a result, many employers have been considering new policies and benefit offerings based on these changes.
Read more here.