Westchester County Adopts Safe Time Law

On May 3, 2019, Westchester County Executive George Latimer formally signed into law the County’s Safe Time Leave for Victims of Domestic Violence and Human Trafficking Law (“Safe Time Law”), which provides eligible employees who are victims of domestic violence or human trafficking with up to 40 hours of paid leave in a calendar year to attend criminal and civil court proceedings and/or relocate to a safe location. The Safe Time Law becomes effective in 180 days from adoption, which is in late October 2019.

The Safe Time Law is separate from the Westchester County Earned Sick Leave Law and provides additional leave. With limited exception, any employee who works more than 90 days in Westchester County in a calendar year is eligible for Safe Time. At the beginning of each year – calendar or anniversary year as chosen by the employer – employers must give eligible employees 40 hours of Safe Time in a bank. There is no accrual option.

Employees can use Safe Time in full day increments. Employers may require that employees provide reasonable documentation demonstrating that they are using Safe Time for purposes covered by the Safe Time Law. Such documentation can include: (1) a court appearance ticket or subpoena; (2) a police report; (3) an affidavit from an attorney involved in a domestic violence or human trafficking court proceeding; or (4) an affidavit from an organization known to provide assistance to victims of domestic violence and/or human trafficking. Employers will need to be mindful of confidentiality provisions in the law. For example, health or safety information possessed by an employer regarding an employee or employee’s family member will need to be placed in confidential files, maintained separate and apart from an employee’s personnel file.

Covered employers must give employees written notice of how the Safe Time Law applies to employees and a copy of the law. The Safe Time Law also has a posting requirement. Failure to comply with the Safe Time Law can result in civil fines and other penalties.

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.

Federal Court Allows Class Action Website Disability Access Case to Proceed Against An Employer

While we continue to wait for guidance from the government on website accessibility standards, plaintiffs continue to challenge the accessibility of company websites. For years, individuals have brought lawsuits claiming that their access to goods and services is limited under Title III of the Americans with Disabilities (“ADA”). More recently we have seen individuals challenge their access to employment under Title I of the ADA due to online application processes that they claim are not accessible.

In a recent case out of the Northern District of Ohio, Kasper v. Ford Motor Company, the U.S. District Court for the Northern District of Ohio allowed a class action to proceed against an employer based on allegations that the company’s on-line application process was not accessible and the company did not provide an accessible accommodation request process. While the case is far from over, it offers a good reminder of three questions employer should consider:

Do your applicants as a practical matter have to apply online to be considered for employment?

Is your website accessible to disabled application, especially those applicants with visual disabilities?

Do you offer an effective accommodation process for individuals to request accommodation where they are unable to use the on-line application process?

In Kasper, the company provided an accommodation process to the online application process but Kasper claims that the process itself was limited due to website accessibility issues. Requesting an accommodation involved calling a hotline listed on Ford’s website. Next to the hotline number, Ford’s website instructed users to leave their contact information and details about the job in which they were interested. Kasper, however, claimed that his cognitive disability prevented him from providing the required job information via the hotline, as he could not access the necessary information about the job from Ford’s website.

Kasper v. Ford Motor Co. is just one of the recent cases that has emerged in the website accessibility arena under Title I of the ADA prohibiting employers from discriminating against applicants and employees on the basis of a disability. Since this area of law appears to be receiving increased attention, employers may want to review their online employment application process (including their mobile apps) to determine whether disabled applicants have an equal opportunity to participate in the application process.

Governor Sununu Vetoes The NH Legislature’s Paid Family Medical Leave Plan

The New Hampshire Paid Family Medical Leave law has been left behind in the dust. Republican Governor Chris Sununu vetoed the bill, saying that he fully supports paid family medical leave but not the plan passed by the Democratic majority New Hampshire Legislature. The Democratic proposal, referred to as Senate Bill 1, would set up a public fund administered by the New Hampshire Department of Employment Security and would have been funded by a payroll tax on all employee wages. The payroll deduction would be mandatory unless the employer voluntarily provided the same or superior benefits either directly or through a self-insured plan.
Calling this an “income tax” that neither he nor New Hampshire would support, Governor Sununu effectively killed the plan with the veto. The original votes in the House and Senate fell far short of the two-thirds needed to override the Governor’s veto.
The Governor’s plan, which he submitted with his 2019 Budget, proposes a state funded program in cooperation with Vermont for state workers in both states in which non-state employers or individual employees would be able to voluntarily participate at a premium that would be reduced by the large pool of state workers. This plan, however, has gained little traction in the Democratic Legislature.
Perhaps a compromise can be reached. After all, both sides appear to agree that paid family medical leave is a good idea—it is just a matter of figuring out how to pay for it.

Regular, Reliable Attendance Can Be An Essential Function, Connecticut Appellate Court Holds

A recent Connecticut Appellate Court case provides helpful reminders that:

  • regular, reliable attendance can be an essential function of many jobs; and
  • eliminating an essential job function is not a reasonable accommodation.

Plaintiff in Barbabosa v. Board of Education of the Town of Manchester was a full-time, one-on-one paraprofessional for schoolchildren. The trial court held as a matter of law that regular attendance was an essential function of that job, which required direct interaction with students. While Plaintiff’s performance reviews confirmed that she met expectations when she was present at work, 10 of her 13 performance reviews noted that her tardiness and excessive absenteeism interfered with her performance. Plaintiff was not eligible for leave under the Family and Medical Leave Act, but was granted a leave of absence coextensive with her banked sick time. Plaintiff then requested intermittent leave prospectively.

In its decision issued April 23, 2019, the Connecticut Appellate Court affirmed summary judgment in favor of the employer, finding that regular attendance was an essential job function; and, where Plaintiff’s requests for intermittent extended leave would eliminate that essential function, such leave was not a reasonable accommodation as a matter of law. The Court explained:

we fail to see how it is possible to perform the essential function of attending work through an accommodation that provides for even more absences from work . . . the plaintiff’s request to permit her to take intermittent leave, above and beyond that for which she was eligible or already approved, would only exacerbate her existing attendance issues and would further undermine her ability to perform an essential function of her employment, namely, maintaining regular attendance. It is, thus, not a reasonable accommodation.

While this decision is helpful to employers attempting to manage employee absences, keep in mind:

  • Each employee’s request for an accommodation should be handled through an individualized, interactive process in light of the particular circumstances.
    • A continuous leave of absence or leave extension may constitute a reasonable accommodation depending on the circumstances.
  • Employers should be prepared to demonstrate that regular and reliable attendance is an essential function of a position.
    • For example, in the Barbabosa case, the Court noted the employer’s repeated documentation of the negative impact that Plaintiff’s absences had on the students she supported.
  • State or federal FMLA may protect intermittent absences for eligible employees with a serious health condition, irrespective of whether leave would be a reasonable accommodation.
    • In Barbabosa, the plaintiff was ineligible for FMLA and the employer considered whether leave was a reasonable accommodation after Plaintiff exhausted time-off to which she was entitled under the employer’s policies.

Connecticut Issues Guidance on Pregnancy Accommodation

On April 23, 2019, the Connecticut Commission on Human Rights & Opportunities (CHRO) issued a Best Practices Bluepaper as guidance for employers with three or more employees facing accommodation requests from employees for pregnancy, childbirth, or related conditions.

The guidance reiterates the current obligations for employers as laid out in the 2017 amendments to the Connecticut Fair Employment Practices Act:

  • Workers are entitled to reasonable accommodations for pregnancy, childbirth, and related conditions;
  • Workers are entitled to reasonable leaves of absence due to disability resulting from pregnancy;
  • Workers are entitled to reasonable accommodations and reasonable leaves of absences for any pregnancy-related condition or symptom; and
  • Workers are entitled to reasonable accommodations for lactation needs.
  • An employer must engage in a good-faith discussion regarding a requested accommodation with an employee, who is entitled to confidentiality and, of course, should never be subject to retaliation for requesting accommodation.

The CHRO’s guidance interprets and, in some cases, goes beyond the actual language of the amendments. Therefore, when evaluating requests for accommodation of pregnancy, childbirth, and related conditions, employers should consult not only the language of CFEPA, but also the CHRO’s guidance, including the following key points:

  • The guidance lists many symptoms and conditions for which accommodations may be required, including fatigue, preeclampsia, lactation-related conditions, and infertility.
  • Similarly, the non-exhaustive list of potential accommodations is extensive and includes permitting sitting, drinking, or eating at work, more frequent breaks, job restructuring, and light duty.
  • Employers cannot require medical documentation as a condition of beginning the interactive process. In many cases, per the CHRO, medical certification should not be necessary.
  • An employer must provide advance notice of any certification requirement, which it can only request if it does so for other employees seeking medical leave, and should allow at least fifteen days for the employee to provide the certification.
  • An employee (or any required medical certification) only needs to confirm (1) the nature of the limitations necessitating the accommodation; and (2) that the limitations are related to the employee’s pregnancy, childbirth, or related condition.
  • An employer may only require a “fitness for duty” note if it provided advance notice of this requirement and provided the requirement applies to all employees returning from “temporary disability leaves.”

Employers must also consider, as appropriate, the interplay between the ADA, state and federal FMLA, Connecticut Paid Sick Leave, employer-provided benefits, current policies and past practices.

As further evidence of the continued focus on pregnancy and related conditions, House Bill 7043, currently pending in the Connecticut Legislature, seeks to expand reasonable accommodations for lactation needs so as to require a private room (other than a toilet stall) that includes, or is near, a refrigerator and an outlet. We will continue to monitor this bill and others related to workplace issues. In the meantime, employers should review their accommodation practices and the CHRO’s guidance and ensure they are complying with their obligation to provide notice to employees of pregnancy-related rights.

The ADA, Occupational Injuries and Light Duty

It is not uncommon for employees who are on leave and receiving workers’ compensation benefits to be released to return to work with light duty restrictions.  To account for these situations, some employers have designated light duty positions reserved for employees who are released to return to work on light duty after an occupational injury.

I was recently asked whether an employer is required to extend this policy to an employee who does not suffer an occupational injury, but requests light duty as a result of an ADA disability.  The answer is yes.

Even if a workplace policy limits light duty positons to employees with occupational injuries, under the Americans with Disabilities Act an employer may be required to accommodate an employee seeking a light duty position if they don’t have an occupational injury and don’t otherwise qualify for a light duty position under company policy.

An ADA reasonable accommodation may include modifying an employer policy, absent an undue hardship.  Therefore, an employer may be required to reassign an employee to a vacant light duty position otherwise reserved for occupational injuries if a disabled employee, regardless of the cause of the disability, is unable to perform the essential functions of his or her job, and there is no other effective accommodation available.  It is worth noting that an undue hardship is generally not satisfied by a claim that reassignment under the ADA to a vacant otherwise reserved light duty position will result in no available positions for an employee who requests light duty after an occupational injury.

Prior to reassigning an employee to a light duty position, an employer should engage in an interactive process and ensure that the employee can perform the essential functions of the light duty job, with or without a reasonable accommodation.

Because the ADA does not require that an employer create a position as a reasonable accommodation, if an employer has only temporary light duty positions, it is not required to provide a permanent light duty position for a disabled employee.

The EEOC’s Enforcement Guidance illustrates the interplay between the ADA, occupational injuries and light duty using the following example:

R has light duty positions, which it reserves for employees in its manufacturing department when they are unable to perform their regular job duties because of on-the-job injuries.  CP, an assembly line worker, has multiple sclerosis (MS) which substantially limits a number of major life activities. Eventually CP is unable to perform the essential functions of her position, with or without a reasonable accommodation, because of the MS.  As a reasonable accommodation, CP requests that she be reassigned to a vacant light duty position for which she is qualified.  R says that the vacant light duty position is reserved for employees who are injured on the job and refuses to reassign CP, although it would not impose an undue hardship to do so.  R has violated the ADA by refusing to reassign her to the vacant light duty position.

Dallas Joins the Fray – Will Paid Sick Leave Prevail in Texas?

Over the next several months, the fate of local paid sick leave laws may well be decided by the Texas legislature. But while lawmakers continue to debate whether Texas cities should be prohibited from establishing their own paid sick time mandates, efforts to expand their reach are marching forward. Last week, the City of Dallas boldly entered the fray.

On April 24, 2019, Dallas became the third major city in Texas to pass an ordinance requiring businesses to provide employees working in the city with paid sick leave when they or a family member experience illness, injury, stalking, domestic abuse or sexual assault or otherwise need medical or mental health care. The Dallas Earned Paid Sick Time Ordinance will become effective on August 1, 2019 for employers with more than five employees and on August 1, 2021 for those employing five or less workers. Its provisions track those of the Austin Earned Sick Time Ordinance passed in February 2018, which we have discussed previously. While the Austin ordinance was held unconstitutional by the Third Court of Appeals (a decision now before the Texas Supreme Court), a largely-identical San Antonio ordinance took effect on January 1 of this year, with enforcement to begin on August 1.

Meanwhile, challenges to such ordinances are being lodged at the state legislative level. Specifically, SB 2485 and SB 2487 would prohibit cities from regulating certain employment benefits and leave, as is the case with the Dallas, Austin, and San Antonio ordinances. The two bills will be heard in the Texas House on Wednesday, May 1; that hearing could determine their fate during the regular legislative session. A controversy surrounding the bills is whether they will infringe on existing municipal non-discrimination ordinances.

In short, employers should stay tuned as the legislative and legal challenges to city-driven paid sick and safe leave laws continue. If the Dallas and San Antonio ordinances go into effect on August 1, they will require immediate action. This includes tracking leave accruals, providing leave and issuing employee handbook updates and other notices.

Pittsburgh Issues Guidance on Pregnancy Accommodation

Update:  The Pittsburgh pregnancy accommodation ordinance has been in effect since March 15, 2019.  This new requirement for Pittsburgh employers to provide accommodations and protections for pregnant employees and their partners amends the City Fair Practices Ordinance and applies to employers with 5 or more employees.  The City has published guidance on the new requirements at http://apps.pittsburghpa.gov/redtail/images/4995_02_26_19_Pregnancy_Fairness_Guidance_Document_FINAL.pdf

 For more information on the new ordinance and what it means for Pittsburgh employers, see our last post at https://www.disabilityleavelaw.com/2019/03/articles/pregnancy-2/pittsburgh-now-requires-pregnancy-accommodations-for-employees-and-partners/  

 We will continue to provide updates as any additional information and guidance becomes available.

 

Poster Released for the Westchester County Earned Sick Leave Law

Westchester County has released a poster for the Westchester County Earned Sick Leave Law (“WCESLL”).  By July 10, 2019, all employers covered by the law must post the poster in English, Spanish and any other language deemed appropriate by the County of Westchester, in a conspicuous location. To date, Westchester County has only released the poster in English.

Employers should have already started 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 July 10, 2019 to provide a copy of the law and written notice to eligible current employees. Westchester County recently published a revised model notice.

For more information about WCESLL, please see our blogs Model Notice of Employee Rights Released for the Westchester County Earned Sick Leave Law and What Employers Can Do Right Now To Prepare For Westchester County’s Earned Sick Leave Law.

Please contact Arin Liebman, Susan Corcoran or the Jackson Lewis attorney with whom your regularly work with any questions related to the Westchester County Earned Sick Leave Law.

Plaintiff With PTSD Not Disabled Under The ADA, Sixth Circuit Rules

The Sixth Circuit’s ruling in Tinsley v. Caterpillar Fin. Servs., Corp., No. 18-5303 (6th Cir. Mar. 20, 2019) is a good reminder that not all impairments rise to the level of a “disability” within the meaning of the Americans with Disabilities Act (“ADA”).  In addition to showing a physical or mental impairment, ADA plaintiffs also must show that the impairment “substantially limits one or more major life activities” to have a disability under the ADA.

Prior to the ADA Amendments Act of 2008 (“ADAAA”), courts frequently dismissed ADA claims on summary judgment after concluding that the plaintiff failed to show that her impairment substantially limited a major life activity.  The ADAAA, with a stated purpose of broadening the scope of protection available under the ADA, certainly has reduced the number of such holdings.  But, as illustrated by the Sixth Circuit’s decision in Tinsley, while the ADAAA may have lowered the bar, a showing of substantial limitation in a major life activity is still required.

Tinsley worked for Caterpillar for 18 years.  In 2013, she was given a new role working for a new supervisor.  In 2015, Tinsley began complaining about her new role—focusing her complaints on her supervisor and the alleged hostile environment created by his management practices.  At the recommendation of her doctor, Tinsley took medical leave from September to October 2015.  In October 2015, she returned to work with a doctor’s note, which contained her PTSD diagnosis.  The doctor’s note provided that she could return to work without restrictions, but recommended that she be moved to a different work environment under a different manager because of her PTSD.  Instead of reassigning her to a different manager, the company approved her for additional medical leave.

After returning to work at the end of her approved leave, Tinsley requested additional medical leave and again requested a new supervisor.  Caterpillar denied these requests.  Tinsley resigned and filed suit alleging that Caterpillar violated the ADA by not providing her with a reasonable accommodation.

The Sixth Circuit affirmed summary judgment for Caterpillar—ruling that Tinsley, despite her PTSD diagnosis, was not disabled for purposes of the ADA because she was not substantially limited in a major life activity.  The only major life activity in which Tinsley argued she was substantially limited was the major life activity of “work.”  The Sixth Circuit explained that “a plaintiff who asserts that her impairment substantially limits the major life activity of ‘working’ is . . . required to show that her impairment limits her ability to ‘perform a class of jobs or broad range of jobs.’”  The Court held Tinsley failed to make this showing: “Although Tinsley has a disability—PTSD—she has not demonstrated that her disability ‘substantially limits’ her from ‘work,’ as that term is understood vis-à-vis the ADA.”

Takeaway

The ADAAA provides that prior to its passage, courts interpreted the terms “substantially limits” and “major life activity” too narrowly, and conveys that the “question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.”  However, as exemplified by Tinsley and other post-ADAAA cases, instances remain where an impairment does not substantially limit a major life activity, and employers should be mindful of this when defending against ADA claims.

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