The Westchester County Safe Time Leave Law takes effect today October 30, 2019.  Starting on January 28, 2020, employers must begin providing eligible new hires with a copy of the law and written notice, which is intended to explain how the law applies to them.   Employers have until January 28, 2020 to provide a copy of the law and written notice to eligible current employees. The Safe Time Leave Law also requires that employers post a poster in English, Spanish and any other language deemed appropriate by Westchester County, in a conspicuous location.   Employers can locate a copy of the law, a model Notice of Employee Rights, the postings and FAQs on Westchester County’s website

The Safe Time Leave Law covers employees who work in Westchester County for more than 90 days in a calendar year with limited exceptions.  Eligible employees have the right to use up to 40 hours of leave in a year to attend or testify in a criminal or civil court proceeding relating to domestic violence or human trafficking or to move to a safe location.  Employers must provide safe time leave in addition to sick leave provided under the Westchester County Earned Sick Leave Law (“WCESLL”).  Unlike the WCESLL, there is no accrual option. 

For more information about Westchester’s Safe Time Leave Law, please see our blog Westchester County Adopts Safe Time Law.

Please contact Arin Liebman, Susan Corcoran or the Jackson Lewis attorney with whom you regularly work with any questions related to Westchester County’s Safe Time Leave Law.

 

The much-anticipated decision from the U.S. Supreme Court (SCOTUS) on Domino’s Pizza’s Petition for Certiorari is in. On October 7, 2019, the SCOTUS denied review of a decision from the Ninth Circuit Federal Court of Appeals in Robles v. Domino’s Pizza. The Ninth Circuit in Robles held that (1) Title III of the ADA covers websites with a nexus to a physical place of public accommodation, and (2) liability for not having an accessible website, even without any regulation on the subject, does not violate due process rights of business covered by Title III. The SCOTUS denial of certiorari leaves intact the Ninth Circuit’s decision. The case will be remanded to the federal district court where Plaintiff filed the lawsuit originally for a decision on the merits.

Business trade groups were looking to the SCOTUS to review Robles in order to provide some relief and clarity to what has been chaotic legal regime resulting in an ever-ticking upwards onslaught of lawsuits against business. The Department of Justice (DOJ), the federal agency responsible for issuing regulations under Title III so that stakeholders better understand their rights and obligations under the law, does not appear to be poised to issue website accessibility regulations anytime soon, if at all. The DOJ first announced its intention to do so back in 2010. Business trade groups were hoping the SCOTUS might provide some needed guidance in this area.

Although disability rights groups and the plaintiff’s bar may tout the SCOTUS’s decision as a victory, the impact on website accessibility litigation under Title III is far from clear. While the decision is certainly not going to reduce the number of lawsuits filed or dampen the motivation of attorneys and serial plaintiffs to file these lawsuits, most plaintiffs’ law firms already had been filing literally thousands of lawsuits over the last few years on the premise that holding companies liable under Title III due to an inaccessible website does not violate due process rights. Unfortunately, the SCOTUS’s decision to deny certiorari does not help businesses or, for that matter, the disabled as there remains no consistent guidance on website accessibility. Since the Congress does not appear ready to amend the law and the DOJ is seemingly reluctant to regulate in an area where the agency many years ago stated it was needed, the courts have been left to decide what the law requires in a rapidly-changing technological environment. Unfortunately, because many of these cases settle early on, litigation is also not likely to timely and effectively shape the law in this area either.

Under the Americans with Disabilities Act (“ADA”), an employee is entitled to a reasonable accommodation if the employee has a disability and is a “qualified individual,” meaning that the employee can perform the essential functions of the position with or without reasonable accommodation. When assessing an employee’s request for an accommodation under the ADA, employers often reference the job description to identify the “essential functions” of the position. A recent federal court decision, however, serves as a reminder that the actual job duties—not those listed in the job description—are controlling and that reliance on the job description alone may not carry the day.
In 2015, Mary Wiggins (“Wiggins”) a long-time employee of the City of Montgomery, Alabama (“the City”) applied for a promotion to the position of Revenue Examiner. The job posting and the job description both indicated that the “[w]ork involves inspecting premises … for violations and verifications” and that the “[w]ork is performed primarily in the field…which may involve working in inclement weather, visiting construction sites, climbing stairs, walking over rough terrain…etc.”
Wiggins had significant knee problems that would have prevented her from carrying out the site inspection duties but applied anyway, seeking a position as an “Inside Examiner.” The City denied Wiggins’ application and promoted three other candidates to fill its vacant Revenue Examiner positions.
Wiggins sued, claiming, among other things, that the City discriminated against her, when it failed to provide her with a reasonable accommodation. The City moved for summary judgment arguing that based on the job description Wiggins was not a “qualified individual” under the ADA. The court denied summary judgment because the evidence suggested that conducting site visits was not as “essential” as the job description and job posting indicated. Two of the individuals promoted instead of Wiggins had not conducted a single site visit or even left the office for field duty during their first 11 months in the position. The Court determined that a jury must determine whether Wiggins could have performed the essential functions of the Revenue Examiner position with a reasonable accommodation (i.e. no site visits) and, therefore, was a qualified individual under the ADA.
Employers should regularly review and update job descriptions to ensure they accurately reflect the essential functions of the position and when considering an accommodation request, employers cannot rely on the job description alone.
The decision is Wiggins v. City of Montgomery, C.A. No. 2:17-cv-425 (M.D. Al. Sept. 20, 2019)

With Election Day fast approaching, employers should ensure they are in compliance with state law requirements related to employee voting rights. While not all states impose requirements on employers, some impose time off obligations and notice requirements with the possibility of criminal or civil penalties for non-compliance. Applicable voting laws vary by state. Some state laws require paid time off to vote, while other state laws do not mandate such time off be paid. Laws also vary as to the amount of time that must be provided and whether an employer can dictate which hours are taken off, such as at the start or end of the employee’s workday. Further, some jurisdictions require postings to advise employees of their voting leave rights. Additionally, some jurisdictions also obligate employers to provide time off to employees who serve as election officials or to serve in an elected office. You can read more about it here.

 

A federal appeals court upheld the termination of an employee who tested positive for amphetamines on a random drug test – despite his claim that the result was due to over-the-counter drug use – and rejected his arguments that the random drug test was an impermissible medical examination and that the Medical Review Officer’s questions constituted an impermissible disability-related inquiry. Turner v. Phillips 66 Co., Case No. 19-5030 (10th Cir. Oct. 16, 2019). You can read more about it here.

The National Safety Council, a nonprofit organization whose stated mission is to eliminate preventable deaths at work, in homes and communities through leadership, research, education and advocacy, published a Position/Policy Statement on October 21, 2019 addressing cannabis (marijuana) impairment in safety-sensitive positions. NSC stated that “it is clear that cannabis impacts psychomotor skills and cognitive ability,” and concluded that “there is no level of cannabis use that is safe or acceptable for employees who work in safety-sensitive positions.” (“Safety-sensitive” refers to jobs that impact the safety of the employee and the safety of others as a result of performing that job). You can read more about it here.

The Sixth Circuit previously explained in Hostettler v. College of Wooster, 895 F.3d 844 (6th Cir. 2018) that regular, in-person attendance is not a per se essential function of every job.  Rather, employers must tie time-and-presence requirements to the specific job at issue.  In Popeck v. Rawlings Co., LLC, No. 19-5092 (6th Cir. Oct. 16, 2019), the Court ruled that Rawlings showed regular, on-site attendance was an essential function of Popeck’s auditor job, and Popeck was not a qualified individual under the Americans with Disabilities Act (“ADA”) because she could not perform this essential function.

Background

Popeck worked as an auditor for Rawlings from 2009 until her termination in 2015.  In 2013, Popeck’s doctor diagnosed her with irritable bowel syndrome (“IBS”).  Shortly thereafter, Rawlings approved Popeck for intermittent FMLA leave—allowing her to arrive to work late or leave early when needed to address her IBS symptoms.

In November 2014, Popeck exhausted her FMLA leave for the year.  Rawlings, however, as an ADA accommodation, continued to allow Popeck to come in late or leave early when her IBS symptoms flared up—bridging the gap until her FMLA leave renewed in December 2014.

In 2015, Popeck’s work performance dwindled. By July 2015, she exhausted her FMLA leave for the year.  She again sought an ADA accommodation as a bridge until her next period of FMLA eligibility, but Rawlings denied the requested accommodation.  Popeck continued to miss work, and Rawlings ultimately terminated Popeck for excessive tardiness.

Popeck then filed suit alleging, among other things, that Rawlings violated the ADA by failing to accommodate her and terminating her.

Sixth Circuit’s Decision

The Sixth Circuit affirmed summary judgment for Rawlings on Popeck’s ADA claims.  Because Popeck could not attend work regularly and in person, the Court had to decide whether regular, in-person attendance was an essential function of the auditor job at Rawlings.

The Court held “regular, in-person attendance constitutes an essential function of most jobs,” and it was an essential function of auditor jobs at Rawlings.  The Court explained that auditors must access information about healthcare claims from secure computers in Rawlings’ offices, and Rawlings prohibits auditors from working remotely because of the “large volume of confidential and HIPAA protected personal information” in the claims they review.

Popeck argued in-person attendance was not essential because Rawlings allowed other employees to work remotely.  The Court rejected this argument because the other employees Popeck pointed to were not auditors and had different job functions.

The Court then considered whether Popeck proposed a reasonable accommodation that would enable her to perform the essential functions of the job and concluded she did not.  Popeck’s proposed accommodation—occasional flexibility to arrive late and leave early when her IBS symptoms flared—did not allow her to perform the essential function of regular, on-site attendance because the evidence showed that by the end of her employment she missed work nearly 60% of the time.

Takeaway

As the Sixth Circuit explained in Hostettler, regular, in-person attendance is not an essential function “simply because an employer says that it is”; rather, “an employer must tie time-and-presence requirements to some other job requirement.”  While issues of fact existed as to the human resources job at issue in Hostettler, Rawlings successfully made this connection as to Popeck’s auditor job.  As highlighted by these Sixth Circuit decisions, employers should always conduct a fact-intensive analysis of the job position at issue when considering work schedule and work location accommodations.

A new California law, Senate Bill 142 (“SB 142”), effective January 1, 2020, expands on existing Labor Code requirements for employee lactation accommodations and provides significant new consequences to employers for non-compliance.  Under pre-existing law (Cal. Labor Code 1030 et seq.), employers were required to make reasonable efforts to provide a private location, other than a bathroom, in close proximity to the employee’s work area, for employees to express milk in private and to provide reasonable break time to express milk.

SB 142 amends Cal. Labor Code section 1031 to require the following features for private lactation spaces:

  • Must be safe, clean and free of hazardous materials;
  • Contain a surface to place a breast pump and personal items;
  • Contain a place to sit; and
  • Have access to electricity or alternative devices (e.g., extension cords or charging stations) needed to operate a breast pump.

SB 142 also requires employers to provide access to a sink with running water and a refrigerator (or cooler) to store milk, in close proximity to the employee’s workspace.  Further, if a multi-purpose room is used, then lactation purposes must take precedent over the other uses.

In addition, employers in a multitenant or multiemployer worksite may comply with new lactation room requirements by providing a shared space at the worksite, if they are unable to provide lactation accommodations within their own workspace.  The statute provides for further requirements for employers and general contractors to respond to subcontractor requests.

Employers with fewer than 50 employees may be exempted from a requirement specified above, if the employer can demonstrate that it would impose an undue hardship when considered in relation to the size, financial resources, nature, or structure of the business.

SB 142 also includes significant consequences for non-compliance with Cal. Labor Code sections 1030, et seq., including specifying that employees may report violations directly to the Cal. Labor Commissioner and levying a civil penalty of up to $100 per day for each day on which an employee is denied reasonable break time or adequate space to express milk.  Previously, the law permitted a $100 penalty per violation.

SB 142 also states that the denial of reasonable break time or adequate space to express breast milk is deemed a failure to comply with Cal. Labor Code section 226.7, which mandates rest and recovery periods. The penalty for failure to provide such rest and recovery periods is one additional hour of pay at the regular rate of compensation for each workday a rest or recovery period is not provided.

SB 142 also prohibits discrimination or retaliation against an employee for exercising or attempting to exercise any right within Cal. Labor Code 1030 et seq.

Lastly, newly enacted Cal. Labor Code section 1034 requires employers to implement a policy regarding lactation accommodation requirements that will be distributed to new employees upon hire or a request for parental leave.  The policy must, among other things, promise that the employer will respond in writing if unable to comply with an employee’s request for accommodation and advise employees of their right to report lactation accommodation violations to the Cal. Labor Commissioner.

Employers should reach out to the Jackson Lewis attorney they normally work with to evaluate their lactation accommodation obligations.

What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration.  This is the 26th blog in in this series, which digs into the FMLA regulations and related issues to address discrete mis-steps that can result in legal liability.

Increasing legal risk by making stray comments while investigating potential FMLA leave abuse.

While employers may not discourage legitimate FMLA use, employers can (and should) investigate suspected employee abuse of FMLA leave.  In January 2018, we discussed the perils of not adequately investigating potential FMLA abuse before taking action.  We now discuss a similar topic: how just one stray comment can undo an otherwise effective investigation into FMLA abuse.

In Poitras v. ConnectiCare, Inc., 206 F. Supp. 3d 736 (D. Conn. 2016), an employee was granted FMLA leave based on a spinal condition that caused pain and prevented her from standing or sitting for long periods while at work.  While out on leave, the employee attended a non-work event at a local bar.  Soon afterward, a video and photos surfaced of the employee drinking and dancing at the event.  Coworkers informed supervisors of the employee’s behavior, and the employer investigated for potential FMLA abuse.  During the investigation, the employee asked for an additional 30 days of FMLA leave, which was approved.  The investigation later revealed that, in addition to the event at the bar, the employee delivered Avon products to another office while on leave.  The employer terminated the employee for FMLA abuse.

Although the employer relied upon the “honest belief” defense and the strength of its investigation, the court sided with the employee.  Significantly, the court focused on a single remark made by one of the managers, a decisionmaker, who made the comment that she decided termination was proper when she learned that the employee had requested additional FMLA leave.  The court reasoned that this remark showed that the employer’s true motive might have been retaliation against the employee for taking FMLA leave—not for abusing that leave.

What can we learn from this? One stray remark can be costly. Good faith compliance with the FMLA is key to successfully defending FMLA claims and managers and supervisors should be trained on FMLA obligations.

After an initial delay, payroll and wage withholdings to fund the Massachusetts paid family and medical leave program are set to begin on October 1. The Massachusetts Paid Family and Medical Leave Act (PFMLA) established a fund that will allow employees in the Commonwealth to begin taking paid leave in 2021 for their own serious health condition or to care for a family member with a serious health condition. Employers will contribute to the state created fund through a contribution of .75% of employee wages up to the social security cap, currently set at $132,900 per individual for 2019.

Employers can withhold up to .378% of employee wages to fund the contribution. Of that .378% withholding, .13% will be allocated towards funding family leave and .248% will be allocated towards funding medical leave. The remaining .372% of the contribution must come directly from the employer. Employers with fewer than 25 Massachusetts employees are exempt from the required employer contribution and only need to deduct and contribute the .378% of payroll withheld from employees.

Employers must make the required contribution to the Commonwealth through the MassTaxConnect system quarterly and contributions are due by the end of the month following the quarter close. The first contributions must be made to the state by January 31, 2020.

In addition to the contribution requirements, employers must take the following actions by October 1, 2019:

  • Display the published PFMLA poster in a conspicuous place in the workplace;
  • Distribute the notification of the law to all current employees and receive their acknowledgement of receipt (notice and acknowledgement of receipt can be provided electronically);
  • Add the notification of the PFMLA to the existing on-boarding materials for new hires;
  • Notify any labor unions in the workplace of the company’s intent to bargain over the employee portion of the contribution;
  • Register the company with MassTaxConnect, if not yet registered;
  • Prepare for quarterly reporting to the state through MassTaxConnect (employee names, SSNs, wages paid).

There are a few other deadlines to note in the coming months:

  • If your company intends to apply for a private plan exemption, the application must be completed by December 20, 2019 to apply to the initial contributions;
  • The initial payment for the first quarter of contributions must be made to the state by January 31, 2020.

This is a complex law with a number of moving parts, please reach out to your Jackson Lewis attorney if you have any questions regarding the new law or its administration.

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.