The New Mexico Healthy Workplaces Act (“NMHWA”) requires all private employers in New Mexico to provide all employees one hour of paid sick leave for every 30 hours worked. Employees may use up to 64 hours of earned sick leave per the employer’s defined 12-month period. Employees will be able to use earned sick leave for absences due to various reasons delineated in the Act, some of which include family members’ illness or injury and reasons relating to domestic abuse and sexual assault. Employees are allowed to carry over any accrued, unused earned sick leave but employers are not required to allow the use of more than 64 hours per 12-month period.

As an alternative to the accrual method, the NMHWA permits employers to frontload the full 64 hours of earned sick leave every year. There is no waiting period for accrual, and use of earned sick leave as accrued begins on July 1, 2022, or the first day of employment, whichever is later. To use earned sick leave, employees need only make a “reasonable effort to provide oral or written notice of the need for such sick leave” and “to schedule the use of earned sick leave in a manner that does not unduly disrupt the operations of the employer.” When the need to use earned sick leave is unforeseeable, employees must “notify the employer orally or in writing as soon as practicable.” Employers are strongly advised to review their existing paid time off policies to ensure compliance with the Act beginning July 1.

Finally, employers are required to give written or electronic notice to an employee at the commencement of employment of the employee’s right to earned sick leave; the manner in which sick leave is accrued and calculated; the terms of use of earned sick leave; that retaliation against employees for use of sick leave is prohibited; the employee’s right to file a complaint with the Labor Relations Division of the Workforce Solutions Department if earned sick leave as required pursuant to the NMHWA is denied by the employer or if the employee is retaliated against; and all means of enforcing violations of the HWA. For additional information about the NMHWA, please visit our previous article on the Act. For more information about the NMHWA or other leave laws that may affect your organization, please contact a Jackson Lewis attorney.

As many expected based on the draft opinion that was leaked months ago, the U.S. Supreme Court has held the U.S. Constitution does not protect the right to obtain an abortion. Dobbs v. Jackson Women’s Health Organization, No. 19-1392 (June 24, 2022).

Read more here.

Puerto Rico Governor Pedro Pierluisi has signed into law changes reversing portions of the 2017 employment reform law. House Bill 1244 (HB 1244) rolls back and changes the statutory probationary period, vacation and sick leave accrual, and eligibility for the annual Christmas Bonus, among other requirements. The changes go into effect for most employers on July 20, 2022. For certain “small” and “mid-size” businesses as defined in the new law, changes will be effective on September 18, 2022.

Read more here.

Over six months after the Connecticut Family and Medical Leave Act (Connecticut FMLA) took effect, proposed regulations are slated for consideration and approval by the Connecticut Legislative Regulation Review Committee (LRRC). With the exception of nonpublic elementary or secondary schools, all private employers with at least one employee in Connecticut are covered by the Connecticut FMLA as of January 1, 2022.

Read more here.

Illinois has enacted amendments to the Child Bereavement Leave Act, expanding the law’s scope and renaming it the “Family Bereavement Leave Act” (FBLA). The amendments are effective January 1, 2023, and the two major purposes are to: (1) expand the definition of family members covered by FBLA; and (2) include fertility-related losses in the acceptable reasons an employee may use leave under the FBLA.

Read more here.

On May 25, 2022, during Mental Health Awareness Month, the Wage and Hour Division (WHD) of the Department of Labor, the agency responsible for enforcing the Family and Medical Leave Act (FMLA), issued Fact Sheet # 28O and related Frequently Asked Questions, which discuss mental health and leaves of absence under the FMLA.  The publications do not create new law or obligations on employers, but provide detailed discussion, including hypothetical fact-patterns, explaining when an employee may be entitled to a job-protected leave of absence under the FMLA for their own mental health condition, or when they are providing care for a family member with a mental health condition.

In this guidance, the WHD explains that an eligible employee may take job-protected leave under the FMLA for their own “serious health condition or to care for a spouse, child or parent because of a serious health condition” and that a serious health condition can include a “mental health condition.”   Mental and physical health conditions are serious health conditions under the FMLA if they require “1) inpatient care or 2) continuing treatment by a health care provider.”  The DOL explains in the Fact Sheet that serious mental health conditions requiring continuing treatment by a healthcare provider include:

  • “Conditions that incapacitate an individual for more than three consecutive days and require ongoing medical treatment, either multiple appointments with a health care provider, including a psychiatrist, clinical psychologist, or clinical social worker, or a single appointment and follow-up care (e.g., prescription medication, outpatient rehabilitation counseling, or behavioral therapy); and
  • Chronic conditions (e.g., anxiety, depression, or dissociative disorders) that cause occasional periods when an individual is incapacitated and require treatment by a health care provider at least twice a year.”

The Fact Sheet provides specific examples of when mental health conditions would be covered under the FMLA for an employee’s own mental health condition, when caring for a family member under the age of 18 with a mental health condition, and when caring for a family member over the age of 18 with a mental health condition.

Fact Sheet #28O explains that the FMLA also provides eligible employees with up to 26 weeks of military caregiver leave to care for a covered servicemember and certain veterans with a serious injury or illness.  A serious illness or injury for current servicemembers is one that was incurred in the line of duty “that may make the servicemember medically unfit to perform the duties of their office, grade, rank or rating” or results from the “aggravation in the line of duty on active duty of a condition that existed before the member began service.”  With respect to veterans, a serious injury or illness is one that makes the veteran “medically unfit to perform his or her military duties, or an injury or illness that qualifies the veteran for certain benefits from the Department of Veteran Affairs or substantially reduces the veteran’s ability to work.”  Serious illness or injuries for veterans also include those “incurred or aggravated during military service but that did not manifest until after the veteran left duty” such as post-traumatic stress disorder (PTSD) or depression.

Finally, Fact Sheet #28O and the related FAQs reiterate the FMLA requirements that employers keep employee medical records, including any records regarding an employee’s mental health condition, confidential and separate from “more routine personnel files” and reinforce the FMLA’s anti-retaliation protections.

Jackson Lewis attorneys are available to assist employers in understanding their rights and obligations under federal and state leave laws including the FMLA.

The Washington Employment Security Department has amended the “waiting period” regulation, WAC 192-500-185, for certain employees who successfully apply to the state’s Paid Family and Medical Leave (PFML) Program.

Under Washington’s PFML, the “waiting period” falls during the first seven consecutive calendar days beginning with the Sunday of the first week that an eligible employee starts taking leave.  During the waiting period, an employee does not receive any pay but still uses one of their available weeks of leave.

Effective June 9, 2022, the waiting period will (a) no longer count against the employees’ benefit entitlement (of up to 18 weeks in some circumstances) and (b) no longer be required for birth parents requiring medical leave immediately following the birth of a child.  Employees who take leave for qualifying military events or to bond with a new child are already exempted from a waiting period.

These changes benefit employees by making their pay from the state consistent with the time off they receive under PFML. The amendment also coordinates with another recent change in the law that treats the first six weeks of post-natal leave as medical leave, rather than family leave, unless the employee chooses otherwise.

If you have questions or need assistance, please reach out to the Jackson Lewis attorney with whom you regularly work, or any member of our Disability, Leave and Health Management Practice Group.

 

 

 

 

 

 

 

 

For decades, employers have used technology to help decision-making, from hiring to performance bonuses. While seemingly taking human biases out of the equation, the U.S. Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ) have voiced concerns over potential disability discrimination from the use of technology.

Find out more here.

San Francisco City and County District Attorney Chesa Boudin and Los Angeles County District Attorney George Gascón have filed a lawsuit in the California Superior Court in San Francisco accusing the Potter Handy LLP law firm of filing thousands of “boilerplate, cut-and-paste federal-court lawsuits that falsely assert its clients have standing under the Americans with Disabilities Act (‘ADA’)” in violation of California’s unfair competition law.

In the April 11, 2022, Complaint, the DAs assert that Potter Handy files these lawsuits against small businesses accusing them of violation of Title III of the ADA, with little regard to whether such businesses actually violated the ADA, in an effort to “shake down” small business owners for hefty financial settlements.

The DAs are requesting that the court prohibit Potter Handy from continuing to violate California’s unfair competition law. The Complaint seeks statutory damages, which could be in the tune of millions of dollars, along with law firm repaying thousands of small businesses settlement sums paid over the last four years.

This is not the first time for such action. In 2019, the Riverside County, California’s District Attorney’s office filed a civil action against four individuals — serial plaintiff (James Rutherford) and three attorneys (Craig Cote, Joseph Manning, and Babek Hashemi) — and two law firms (Manning Law, APC, and Law Offices of Babek Hashemi) for violations of California’s unfair competition law and for false advertising.

It has been the case for several years that garden-variety Title III lawsuits, like the cases called into question in these lawsuits, are attorney-driven and aimed to extract a monetary sum from unsuspecting and often compliant business owners.

The Riverside County DA’s office employed a different tactic in its latest filing aimed at remedying alleged misconduct by plaintiffs and their attorneys. It has charged two individuals with six felonies, including conspiracy and filing a false document. The individuals (Ross Christopher Cornell and Bryan Eduardo Estrada) were arrested on March 10, 2022.

The most important takeaway from these legal actions is the fact that government officials are formally attacking alleged unethical and unlawful fraudulent conduct perpetrated by these lawyers. Although the 2019 case was ultimately dismissed, the DAs in San Francisco and Riverside counties have not been deterred in their mission to hold these serial filers accountable. It remains to be seen whether potential criminal or civil liability will reduce the number of “shake down” ADA lawsuits in California. If so, it is likely that officials in other states facing similar conduct will take similar measures.

We will continue to monitor these actions as they develop.