Donations Not Accepted – ADA Does Not Require Continued Use of Leave Donation Program

Many employers have programs allowing employees to donate their own time off to another employee with serious medical or family issues.  A dilemma often faced by employers with these policies is whether continued use of such donated time means the employee is not performing the essential function of attendance.  On the one hand, the employee is not violating any attendance rules if the time off is donated under the program.  On the other hand the employee may be taking an excessive amount of time off that is disruptive to the employee’s performance of essential job functions.

In Winston v. Ross, (10th Cir. Feb. 27, 2018), the Tenth Circuit Court of Appeals affirmed the dismissal of an employee’s claims that her employer discriminated against her because it ended her participation in a leave transfer program that allowed employees to donate annual leave when another employee needs additional leave for a medical emergency.  After Ms. Winston exhausted her leave under the Family and Medical Leave Act (FMLA), her employer approved her participation in the leave transfer program for a year.  The employer also provided Ms. Winston with a flexible work schedule and temporary reductions in her hours due to her need for additional time off.  The employer denied her request to telework two days per week because she could not perform her duties as a receptionist handling visitors and routing calls from home.

Among other things, Ms. Winston claimed she was discriminated against on the basis of her disability when her employer terminated her participation in the leave transfer program.   The Court concluded that Ms. Winston’s job required physical attendance.  While she did not dispute that attendance was an essential function of her job, she claimed that her participation in the leave transfer program was a necessary accommodation for her disability, which enabled her to work.  One could argue that is contradictory since her continued participation in the program would mean that she could take more time away from work.  The Court noted that “even if participation in the program allowed Ms. Winston to be absent from work, it does not follow that such participation ensured she could perform the essential functions of her job, including physical attendance.”  In other words, using leave donated by other employees would allow her to be away from work for health reasons, but it would not enable her to fulfill the essential function of physical attendance.

Employers who have, or are considering, some sort of leave or PTO donation program should be sure to include language that allows the employer discretion to approve or deny participation in the program based on the particular facts and circumstances.  Even having a cap on the amount of donated time the employee receives may result in situations where the employee is unable to perform the essential function of attendance.  Instead, employers should retain the ability to review each situation on a case by case basis and decide whether continued participation in the program is an effective and reasonable accommodation that would achieve the objective of allowing the employee to perform the essential functions of his or her job.

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 employee’s interpretation should prevail. See Bodenheimer v. Carrolton Pest Control & Termite Co., Case No. 2017-CA-0595 (La Ct. App. Feb. 14, 2018).

The employee in this case worked for the pest control company for twenty-three years prior to his resignation. Over those years, the employee had earned approximately 1.25 vacation days per month.  At the time of his resignation, he had only used three of his fifteen accrued vacation days for 2015 and none of the 6.25 days he had accrued in 2016.  Therefore, the employee sought compensation for 18.25 days of vacation from his employer.

The employer, interpreting the vacation policy differently than the employee, only paid the employee for 3.25 days upon his resignation and refused the employee’s demands for payment relating to the other days in dispute. The employee subsequently filed suit under La.R.S. 23:631 and 23:632 for unpaid vacation wages of $2,974.02, plus interest.

The issues in the case was whether the vacation policy permitted unused vacation leave to be carried over to a subsequent year or whether unused leave was forfeited at the end of each year. The policy at issue provided that:

  • “Vacation may be taken in any one calendar year to the full extent that it has been accumulated provided this does not pose an imposition on C.P.C.
  • At the end of each calendar year, the amount of earned by unused vacation cannot exceed one time the maximum amount per the employee’s longevity bracket amount if not used before   the end of the calendar year as herein defined will be lost.
  • Unearned vacation may not be advanced.”

The trial court determined that this section was clear on vacation accrual and, contrary to the assertion of the employee, required an employee to use his vacation leave in the year accrued or lose it. After reviewing the trial court’s decision, the policy, and supporting documents from both parties, the Court found that the language of the vacation policy was ambiguous regarding whether unused accrued vacation leave could be carried over into another year, and the ambiguous language should be used against the employer because it was the party that drafted the policy.  The Court reversed the trial court’s decision insofar as it interpreted the policy to require the use of vacation days in the same calendar year in which they are earned and awarded the employee vacation wages for the full 18.25 days sought.

The takeaway for employers is a reminder that whether vacation leave is able to be carried over from year to year and payable upon termination must be clearly articulated in the company policies. Otherwise, an employer may be unintentionally liable for the payment of unused vacation upon the termination of an employee.

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 predict that March Madness will cost billions of dollars in lost worker productivity as employees stream games and check scores.  But spikes in internet activity are not the only thing on the rise.  Employers can also expect an increase in attendance issues.  Whether its long lunches, returning late from breaks or last minute call outs, employers should be prepared to deal with these issues.

Employers should take the time to remind employees of any leave and attendance policies.  Making sure that employees have notice of what is required (and expected) can help avoid attendance related misconduct.  These reminders can also be helpful if the employer needs to defend any disciplinary action.

Are you covered by the Federal Paid Sick Leave Law for Federal Contractors?

As paid sick leave laws continue to pass across the nation, as recently seen in Austin, Texas, employers have focused on complying with the various state and local jurisdictions’ paid sick leave requirements . However, employers may forget, or might have to totally missed, that there is a federal paid sick leave law. Executive Order 13706, Paid Sick Leave for Workers on Federal Contracts (hereinafter called “Federal Contractor Paid Sick Leave Law”), requires that covered federal contractors provide paid sick and safe leave for qualified reasons to eligible employees. Eligible employees can use this time for their own health care, a family member’s health care, and certain needs related to domestic violence, sexual assault, stalking.

What Employers are Covered?

 The Federal Contractor Paid Sick Leave Law covers certain employers who are federal contractors. A “contractor” means any individual or other legal entity that is awarded a Federal Government contract or subcontract under a Federal Government contract. The term “contractor” refers to both a prime contractor and all of its subcontractors of any tier on a contract with the Federal Government. Specifically, the Paid Sick Leave Executive Order applies to the following types of contracts and subcontracts, effective on or after January 1, 2017:

  1. procurement contracts for construction covered by the Davis-Bacon Act (DBA);
  2. services contracts covered by the Service Contract Act (SCA);
  3. concessions contracts, including any concessions contract excluded from the SCA by DOL’s regulations at 29 CFR 4.133(b);
  4. contracts in connection with federal property or lands and related to offering services for federal employees, their dependents, or the general public.

 How Much Paid leave is Required?

 An employee must accrue a minimum of 1 hour of paid sick leave for every 30 hours worked on or in connection with a covered contract. A contractor must aggregate an employee’s hours worked on or in connection with all covered contracts for that contractor for purposes of paid sick leave accrual.

An employer can cap accrual at 56 hours per year and an employee can carry over any unused amount.  However, carried over paid sick leave cannot count toward any annual accrual limit.   There is no maximum usage amount; an employee can use as much paid sick leave as he or she has accrued.

 What are the Reasons Employees can Take Leave?

 An employee working for a covered employer may take Federal Contractor Paid Sick Leave Law for an absence resulting from:

  • an employee’s physical or mental illness, injury, or medical condition;
  • an employee’s needs to obtain a diagnosis, care, or preventive care from a health care provider;
  • caring for a family member who has a physical or mental illness, injury, or medical condition;
  • assisting a family member to obtain a diagnosis, care, or preventive care from a health care provider;
  • reasons related to domestic violence, sexual assault, or stalking.

 Is the Paid Leave Job Protected?

Yes, Federal Contractor Paid Sick Leave is job protected. Additionally, an employer must reinstate the paid sick time if an employee is rehired within 12 months of a job separation.

 What if I Have Other Questions, Such as: Who is an Eligible Employee, How does this Law Integrate with Other Paid Sick Leave Laws, How do I Calculate the Accrual, and More?

 For questions about the Federal Contractor Paid Sick Leave Law, including whether you are a covered employer, which employees are eligible for paid leave, and how this paid sick leave interacts and integrates with state and local paid sick leave laws and other employer benefits, please contact a Jackson Lewis attorney.

The Essential Role of the Job Description

Failure to accommodate claims under the Americans with Disabilities Act frequently stand or fall on a determination of the essential functions of the position at issue. Since the ADA requires an employer to provide a reasonable accommodation that will allow an employee to perform the essential functions of the position that the employee holds or desires, a critical piece of the accommodation analysis is identification of the essential functions.  A recent ruling by the Eleventh Circuit Court of Appeals emphasizes the significant role that the job description plays in that analysis.

Snead v. Florida Agricultural and Mechanical University Board of Trustees, No. 17-10338 (11th Cir. Feb. 21, 2018), involved a failure to accommodate claim from a former police officer at Florida A&M University.  In August 2013, the new police chief at the University changed the work schedule for officers from eight hours to twelve hours.  Snead tried working the twelve-hour shifts, but experienced medical issues related to his high blood pressure.  After Snead’s doctor identified the change in work schedule as the cause of his medical problems, Snead requested that he be returned to a work schedule that consisted of eight-hour shifts.  The University rejected that request based, in part, on the fact that working a twelve-hour shift was an essential function of the job.  Snead subsequently retired from employment and brought suit against the University for failing to accommodate his request for an eight-hour work shift.  A federal jury found in Snead’s favor and awarded him more than $250,000.

On appeal, Florida A&M argued that Snead was not a “qualified individual” within the meaning of the ADA since he could not work a twelve-hour shift, which was an essential function of that position. However, the Eleventh Circuit, relying on the language in the University’s job description for police officers, rejected that argument.  The applicable job description contained a section listing the “Essential Functions” of the position, but that section did not mention shift length.  Instead, a separate section of the job description entitled “Working Hours” referenced the twelve-hour work shift, but also stated that based “upon the needs of the departments, shifts may be changed.”  Since shift length was not specifically referenced in the essential functions section of the position statement, the Court of Appeals found that the jury had reasonably determined that Snead was capable of performing all essential functions of the position.

Many employers require employees to work a specific shift schedule or, at times, even a rotating schedule. For employers who consider the ability to work a set schedule to be an essential function of the job, the Snead decision provides a cautionary tale.  The EEOC’s ADA Regulations clearly indicate that a written job description is evidence of the essential functions of the job.  29 C.F.R. § 1630.2(n)(3). However, just as an employer can use a well-drafted job description in its favor when defending against an ADA claim, a poorly-drafted or incomplete job description may lead to an adverse finding as it did in Snead.  With that in mind, employers are strongly encouraged to regularly review their job descriptions to ensure that they actually align with the essential functions of the job.

New Guidance for the New York Paid Family Leave Payroll Deduction

By: Benjamin J. Yeamans

The ever-moving target that is the New York Paid Family Leave law (“PFL”) has, unsurprisingly, shifted yet again. We recently received confirmation from the New York State regulators that employers do not need to cap the weekly employee payroll deduction for PFL at .126% of the New York State Average Weekly Wage (NYSAWW) (approximately $1.65 per week in 2018).  Rather, employers may deduct .126% of an employee’s weekly wage until the employee hits the annual cap of $85.56, which is .126% of the annualized NYSAWW.  Although the $1.65 weekly cap was not explicitly required, per the language of the statute and regulations, it appeared that until recently, this was New York State Workers’ Compensation Board’s (WCB) position.

As a reminder, the PFL regulations state that an employer is permitted, but not required to, collect the weekly employee contribution for PFL coverage. The New York State Department of Financial Services’ (“DFS”) letter dated June 1, 2017 stated that the maximum employee contribution shall be “0.126% of an employee’s weekly wage up to and not to exceed the statewide average weekly wage.”  It was not clear whether the DFS intended a weekly or annual cap of .126% of the NYSAWW.  Although the DFS’ July 28, 2017 Insurance Circular Letter seemed to suggest that employers can collect .126% of an employee’s weekly wage until the employee hits the annual cap of $85.56, it was not clear whether the WCB agreed to this position.

The State’s new position is further confirmed by its PFL weekly deduction calculator which can be found here. As you can see from the calculator, if an employee’s weekly earnings are greater than the current NYSAWW ($1,305.92), the calculator generates an estimated deduction of .126% of such earnings (prior versions of the State’s calculator capped all estimated deductions at $1.65).  This is further indicated by guidance on the State’s website which states in relevant part: “[t]he 2018 payroll contribution is 0.126% of an employee’s weekly wage and is capped at an annual maximum of $85.56.”  There is no reference to a $1.65 cap.

This is a significant development that will better position employers to collect the full PFL premium from each employee. This is particularly helpful for employers with employees who regularly earn less than the NYSAWW but periodically receive large bonus or commission payments.  Now, employers can collect .126% of an employee’s bonus or commission earnings without regard to the $1.65 cap on weekly deductions.  Using this approach, certain employees will meet their annual maximum PFL deduction of $85.56 prior to the final week of the year.

Please contact your Jackson Lewis attorney if you have any questions.

Continued Focus on Disability, Leave Management Issues in 2018

With the New Year fading from view in the rearview mirror and spring on the horizon (at least for those of us in the Midwest), there are several signs that disability and leave management issues will continue to be hot topics in 2018.

First, a review of the EEOC’s press releases from the first two months of this year suggests a continued focus by the Commission on disability and leave management issues. Since the start of the year, the EEOC has filed six lawsuits alleging claims of disability discrimination, including two cases which appear to involve requests for leave as a reasonable accommodation under the ADA.  Further, the EEOC’s press releases reveal that the Commission has collected $405,500 from employers in the past two months in settlement of disability discrimination claims.  There is no reason to believe that EEOC scrutiny of disability or leave management issues is likely to dissipate anytime soon.

Second, on January 18, 2018, after a landmark decision for employers in which the U.S. Court of Appeals for the Seventh Circuit held that a request for a two-to-three-month leave of absence is not a reasonable accommodation under the Americans with Disabilities Act, the plaintiff in Severson v. Heartland Woodcraft, Inc. petitioned the Supreme Court to review his case.  Specifically, the plaintiff/petitioner asked the Supreme Court to decide if there is a “per se rule that a finite leave of absence of more than one month cannot be a ‘reasonable accommodation’ under the ADA.”  The defendant/respondent filed a brief opposing the request on February 14, 2018, framing the issue as “[w]hether an employee seeking a multi-month leave of absence following three months of FMLA leave is a ‘qualified individual’” under the ADA “given that such leave of absence does not enable the employee to ‘perform the essential functions of the employment position’…during the period of leave.”

While it is unclear whether the Supreme Court will agree to hear the case, we previously predicted that the importance of the Seventh Circuit ruling makes Severson a likely candidate for review by the high court.  We will continue to monitor the Supreme Court docket for further updates.

House Bill Would Limit Drive-by Lawsuits by Amending Title III of Americans with Disabilities Act

The House of Representatives has passed the “ADA Education and Reform Act” (HR 620) with an 85-percent vote in favor of passage (including 12 Democrats).  Prior to filing a lawsuit under Title III of the Americans with Disabilities Act, the bill requires potential plaintiffs to provide businesses with both notice of architectural barriers as well as an opportunity to remove them during a cure period.

Given the recent surge in the number of ADA Title III lawsuits, HR 620 is largely seen as an attempt to slow the growing trend of repeat plaintiffs, who routinely commence multiple lawsuits (in some cases, hundreds of cases) against businesses to extract settlements based on minor physical access barriers in the buildings and facilities.

Under the bill, a potential plaintiff needs to send a business a pre-suit notice that sets forth the following:

1)  “a written notice specific enough to allow such owner or operator to identify the barrier”;
2)  a description of “the circumstances under which the individual was actually denied access to a public accommodation, including the address of the property”;
3)  an indication of “whether a request for assistance in removing an architectural barrier to access was made”; and
4)  “whether the barrier to access was a permanent or temporary barrier.”

If the business fails to respond to the issuer of the pre-suit notice within 60 days of sending the notice with a description of the improvements it will make to remove the alleged barrier, the potential plaintiff can file a lawsuit.  Likewise, if the business responds as described above, but it fails to remove the barrier or make “substantial progress” toward doing so within 120 days, a lawsuit can be filed.

The bill further requires the Disability Rights Section of the U.S. Department of Justice to devise a program to educate property owners and state and local governments about the ADA’s requirements.  HR 620 also mandates the Judicial Conference of the United States to develop a model program of alternative dispute resolution mechanisms to facilitate mediation and early dispute resolution, rather than costly litigation of ADA claims over alleged architectural barriers.

Supporters of the bill suggest that the pre-suit notice will advance the ultimate objectives of Title III of increasing accessibility.  Detractors, on the other hand, have suggested it would cause businesses to take a wait-and-see approach, that is, wait for the notice before taking action.  However, the relatively short timeframe for response and remediation should help alleviate those concerns.

To date, the Senate does not have a meaningful companion bill and little action has been taken by it.  As a result, it is unclear whether HR 620 (in its current or a modified version) will become law.

The legislation, if enacted, applies only to claims under Title III.  Many states and cities have enacted their own public accommodations laws that permit a court to award reasonable attorney’s fees to a prevailing plaintiff.  Unless these jurisdictions enact similar legislation requiring pre-suit notice, the federal legislation could have the unintended effect of moving more of these lawsuits to state court.


If you have any questions regarding HR 620 or Title III compliance, please reach out to our Disability, Leave and Health Management Practice or the Jackson Lewis attorney with whom you regularly work.

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.

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A Paid Family Leave Tax Credit Calculator: Paid Leave Can Contribute to an Employer’s Bottom Line

Rarely do human resources professionals and employment lawyers contribute to an employer’s bottom line. But the new federal tax credit for employer-provided paid family and medical leave offers a unique opportunity to do just that and help reduce your company’s tax liability. The recently-enacted Tax Cuts and Jobs Act provides a tax credit to employers that voluntarily offer paid family and medical leave. Our Jackson Lewis colleagues in the Benefit Law practice group recently summarized this new law. We have taken it a step further and created a Paid Leave Tax Credit Calculator for employers to quickly estimate the potential tax savings their voluntary paid leave programs can generate. Remember that this law provides a tax credit; that means it’s a dollar-for-dollar reduction in the company’s income tax obligation.

Follow these 4 steps to determine if your company can take advantage of the paid family leave tax credit. No employer is too big or too small to receive this tax credit – employers of all sizes are eligible!

Step 1: look at the company’s existing policies that include voluntary pay benefits (i.e., pay that is not required by law), such as a salary continuation disability policy or a parental leave policy. Stated another way, do you provide paid time off for any of the following leave reasons? If so move to Step 2.

  • Employee serious health condition, including pregnancy
  • Parental leave/bonding leave
  • Care of a family member with a serious health condition
  • Care of an injured service member
  • Because of a qualifying exigency that arises when a family member is deployed abroad on active military duty

Step 2: Gather or estimate your company’s 2017 income replacement dollar amount that was used to pay out under one or all of the above-mentioned policies to use as an estimate for calculating a 2018 tax credit.

Step 3: Plug the pay information into Jackson Lewis’s handy Estimated Paid Leave Tax Credit Calculator.

Step 4: If the estimated calculation indicates a positive amount, contact a Jackson Lewis attorney to review your policy to ensure it complies with the tax credit for paid family and medical leave. If you don’t have a policy but have contemplated offering enhanced benefits to your workforce, such as paid parental leave, now is the time! Remember that this is a tax credit, that means it’s a dollar-for-dollar reduction in the company’s income tax obligation, so it’s worth looking into in order to take advantage of potential tax savings the company’s voluntary paid leave program can generate.