2019 has brought a flurry of new leave and accommodation laws.  In fact, in the first 8 months of 2019, more than 20 new laws in this area have passed.

The states (and US territory) that passed new laws, expanded or otherwise amended existing leave and accommodation laws, or had new laws go into effect this year include: California, Colorado, Connecticut, District of Columbia, Kentucky, Illinois, Maine, Maryland, Massachusetts, Michigan, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Puerto Rico, Utah and Washington.

A few notable trends are emerging.

Mandatory PTO

Maine  (effective January 1, 2021), Nevada (effective January 1, 2020) and Bernalillo County, New Mexico (effective July 1, 2020) became the first jurisdictions to mandate that employers provide employees with paid leave that can used for any reason. These laws are a significant departure from the paid sick leave laws that have been adopted in many states and cities across the country that limit the leave to specific reasons.  We expect this broader trend to continue as other jurisdictions are considering similar proposals.

Paid Family and Medical Leave

Efforts to adopt and expand paid family and medical leave across the country continue, as new laws were passed, including in Connecticut and Oregon; benefits were extended in California; Colorado established a task force to implement a family and medical leave insurance program; and the District of Columbia began collecting taxes from private sector employers to fund its paid family leave program.

Other Types of Leave

The number of jurisdictions with laws requiring accommodations for pregnant and breastfeeding employees continues to grow.  We also saw a number of jurisdictions pass laws providing protected leave to employees serving in the state National Guard, civil air patrol and serving as emergency responders. A growing number of jurisdictions are also requiring leave for employees who are the victims of violence or who serve as organ donors.

Keeping up with the dynamic legal landscape can be a daunting task.  Jackson Lewis is here to help.  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.

On August 20, 2019, the Ninth Circuit dodged answering the question of whether morbid obesity is a disability under the Americans with Disabilities Act. In Valtierra v. Medtronic Inc., No. 17-15282, the Ninth Circuit affirmed the District Court’s grant of summary judgment in favor of the defendant, but came short of joining the Second, Sixth, Seventh and Eighth Circuits in explicitly holding that obesity cannot constitute a disability under applicable EEOC regulations unless there is evidence that the obesity is caused by an underlying physiological condition. Continue Reading Ninth Circuit Dodges the Question of Whether Morbid Obesity is an “Impairment” Under the ADA; EEOC Says Yes

New York has amended its Human Rights Law to expand protection from employment discrimination for victims of domestic violence. Signed by Governor Andrew Cuomo on August 20, 2019, the new law amends the New York State Human Rights Law with respect to victims of domestic violence. It also requires employers to provide reasonable accommodations. The new law will become effective on November 18, 2019. Click here to read more.

It is back to school time for school children, which means that parents are more likely to request time off to attend to child care or other school activities. And in California—parents have leave entitlements which employers should be mindful of. Please find the rest of this article on our California Workplace Law Blog here.

The patchwork of paid leave laws around the country is getting increasingly more intricate as local governments adopt mandatory paid time off laws. This week, Bernalillo County, New Mexico added its patch adopting the first paid time off ordinance in New Mexico. Beginning on July 1, 2020, the Employee Wellness Act will require employers within the unincorporated limits of Bernalillo County to permit most employees to accrue paid time off and use that paid time off for any reason. While the ordinance was originally considered earlier this summer as a more traditional paid sick leave law, it was amended to allow for employees to use the time off for “any reason.” The County is following what looks to be a trend started by Maine and Nevada which both passed laws this summer allowing employees to use mandatory accrued paid time off for any reason.

Under Bernalillo County’s new law, covered employers must permit employees to accrue a minimum of one hour of earned paid time off for every 32 hours worked, or employers may choose to use a frontload method and provide for accrual of all earned paid time off at the beginning of the year. The law sets out a three-year phase in period. Employers must allow employees to accrue up to 24 hours of paid time off as of July 1, 2020, 40 hours of paid time off as of July 1, 2021, and 56 hours of paid time off as of July 1, 2022 and thereafter. To be covered by the ordinance, employers must have “a physical premises within the unincorporated limits of the County, which employs two or more employees within the unincorporated limits of the County.”

Employees are required to provide notice to employers “as soon as practicable” for foreseeable leave and “when possible” schedule the use of paid leave “in a manner that does not unduly disrupt the operations of the employer.” Employers, however, may not require advance notice for employees to use paid leave for “emergency or illness.”

Employees may file complaints against employers with the County who is tasked with investigating and adjudicating those complaints. Under the final adopted ordinance, employees are required to exhaust these administrative remedies before filing a claim in court.

Employers with employees working within the unincorporated limits of Bernalillo County, primarily including areas in the South Valley and the East Mountains, should prepare for the following: to provide this paid time off to employees beginning in July 2020, to update their policies, and to provide a notice to all employees that complies with the law. Employers should watch for the County to publish a poster in English and Spanish.

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.

Oregon’s paid family and medical leave law was signed by Governor Kate Brown on August 9, 2019. Eligible workers will be permitted to take up to 12 weeks of paid leave under the new law beginning January 1, 2023.

When the law goes into effect, Oregon will become the eighth state to adopt legislation requiring paid family and medical leave for eligible employees. Oregon’s program is the most generous and inclusive state law passed to date, with low-income workers receiving 100 percent of their wages while on eligible leave. Benefits are capped at 120 percent of the state average weekly wage (currently, approximately $1,200 a week). You can read more about it here.

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.

In an August 8, 2019 opinion letter, the U.S. Department of Labor’s Wage and Hour Division (WHD) shed some light on what counts as “caring for” a family member under the FMLA. In Opinion Letter FMLA2019-2-A, the WHD found that a parent was entitled to take intermittent FMLA leave to attend a meeting at her child’s school to discuss the child’s Individualized Education Program (“IEP”). Such meetings were held four times per year and were attended by a number of professionals, including a speech pathologist, school psychologist, other therapists, teachers and school administrators. The parent had been told by her employer that attendance at these meetings was not covered by the FMLA.

The FMLA allows eligible employees to use protected leave to “care for” a family member with a serious health condition. 29 U.S.C. §2612. The Department of Labor’s FMLA regulations, however, provide little guidance on what specific circumstances count as “caring for” a family member. The regulations acknowledge such care “encompasses both physical and psychological care,” and includes situations where the “family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety.” The regulations state that FMLA leave can be used to transport a family member to a medical appointment, as well as “substitut[ing] for others who normally care for the family member,” or “to make arrangements for changes in care, such as transfer to a nursing home.” “Psychological comfort and reassurance” expressly counts as care.

Courts have not always agreed on how to apply these rules. There are inconsistent decisions on whether attending a “dream trip” or vacation with a seriously ill family member qualifies as FMLA leave. Courts generally have found that handling errands or housework for a seriously ill family member does not qualify as “caring for” that individual under the FMLA. Generally, attending care meetings with health care personnel has been found to qualify, and one court held that attendance at a ceremony for an employee’s terminally ill parent also counted as “caring for” the family member.

In the opinion letter, the WHD found that attendance at the IEP meetings qualified as “care for a family member” because part of the purpose of these meetings was to make arrangements for changes in care. The WHD pointed to a previous opinion letter, in which the Division had found that attending “care conferences” related to a parent’s health condition qualified for FMLA leave. This was because the employee’s attendance at these conferences, during which the individual’s health care providers (nurses, dieticians, physical therapists, activity directors, doctors, etc.) discussed the individual’s medical condition, needs, incidents, and well being was “clearly essential” to the employee’s ability to provide appropriate physical or psychological care. In the case of the IEP meeting, similarly, the Division found that the parent’s attendance was “essential to [her] ability to provide appropriate physical or psychological care” for her children, since she “attends these meetings to help participants make medical decisions concerning [her] children’s medically-prescribed speech, physical, and occupational therapy; to discuss [her] children’s wellbeing and progress with the providers of such services; and to ensure that [her] children’s school environment is suitable to their medical, social, and academic needs.”

Employers should tread lightly before denying requests for FMLA leave involving less conventional forms of care. Depending on the circumstances, attendance at meetings, accompanying a family member on travel, and being present at special events can qualify for FMLA leave. Rather than take a restrictive view of what counts as “caring for” a family member, employers should review current guidance from the WHD and case law in their jurisdiction, and remember that “caring for” a family member is not limited to direct, physical care.

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.

As Bay Area employers are well aware, San Francisco has several local employment-related ordinances that provide additional benefits to individuals performing work within the geographical boundaries of the City. One such benefit is paid parental leave. Please find the rest of this article on our California Workplace Law Blog here.

“What did I do wrong?” and “Am I doing this correctly” are frequent questions from clients regarding FMLA administration. This is the 25th blog in this series, which digs into the FMLA regulations and related issues to address discrete mis-steps that can result in legal liability.

Delaying designation of FMLA-qualifying leave or designating more than 12 weeks of leave.

In a recent opinion letter, the U.S. Department of Labor (“DOL”) Wage and Hour Division clarified its position on two points: (1) an employer may not delay the designation of FMLA-qualifying leave as FMLA leave, and (2) an employer is prohibited from designating more than 12 weeks of FMLA leave (or 26 weeks for military caregiver leave).

The question posed to the DOL was whether it is permissible for an employer to delay the designation of FMLA-qualifying paid leave as FMLA leave or to provide additional FMLA leave beyond the 12-week FMLA entitlement, because some employers voluntarily permit employees to exhaust some or all available paid leave prior to designating FMLA leave.

What can we learn from this opinion letter?

  1. Do not delay the designation of FMLA-qualifying leave. It is the DOL’s opinion that once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave. Therefore, if an employee requests to “delay” FMLA leave or to “not use” FMLA until a later point, and the leave is otherwise FMLA-qualifying, granting such an employee request runs counter to this DOL opinion letter. An employer may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation.
  2. Do not designate more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave. The DOL notes that an employer must observe any employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established by the FMLA. However, providing such additional leave outside of the FMLA cannot expand the employee’s 12-week (or 26-week) entitlement under the FMLA. The DOL provides the example that if an employee substitutes paid leave for unpaid FMLA leave, the employee’s paid leave counts towards his or her 12-week (or 26-week) FMLA entitlement and does not expand that entitlement.

This provides an employer with clear guidance on how it can respond when employees request that FMLA designation be delayed until after they use available paid leave. The full DOL opinion letter can be found here.

On August 5, 2019, the Department of Labor (“DOL”) published proposed revisions to the Wage and Hour Division’s Family and Medical Leave Act (“FMLA”) forms with the stated goal “to increase compliance with the FMLA, improve customer service, and reduce the burden on the public by making the forms easier to understand and use.”

Many revisions are stylistic or organizational. The proposed forms have color-coded sections specific to the employee, the employer and health care provider, and include additional headings and numbering to simplify the forms. For example, the proposed Designation Notice (WH-382) first addresses whether the employee’s request is approved or denied, and then directs the employee to either Section II (“Additional Information Needed”) or Section III (“FMLA Leave Approved”). The current Designation Notice is a single page with multiple sections separated only by bold lines.

Some revisions give additional cues to both employees and employers about the legal nuances of the FMLA. The proposed Notice of Eligibility and Rights & Responsibilities (WH-381) includes a section dedicated to substitution of paid leave. It advises employees that the FMLA allows the employer to require the employee to use available paid leave during the employee’s FMLA absence. The proposed form expressly lists several types of concurrent leave that might be in play, such as short- or long-term disability, workers’ compensation, or state-required leave. The proposed Designation Notice (WH-382) explains the difference between an “incomplete” certification and an “insufficient” certification. The proposed certifications for leave involving a third party (WH-380F, WH-384, WH-385, WH385-V) replace the open-ended request for a description of the reason for the leave with more specific examples for the employee to select (i.e., the Certification of Health Care Provider for Serious Health Condition of the Family Member identifies transportation, physical care, psychological comfort, assistance with basic medical, hygienic, nutritional or safety needs, and other).

New formatting is intended to eliminate the current duplicative questions, and streamline the process for health care providers. The current medical certification forms (WH-380-E and WH-380-F) include a series of “yes” or “no” questions (e.g., “Will the patient need to have treatment visits at least twice per year due to the condition,” “Is the medical condition pregnancy?”). By contrast, the proposed forms WH-380-E and F request that the health care provider check at least one of six boxes (“Inpatient Care,” “Incapacity Plus Treatment,” “Pregnancy,” “Chronic Conditions,” “Permanent or Long Term Conditions,” and “Conditions Requiring Multiple Treatments”), and only provide medical information related to the selected categories. Thus, the health care provider would confirm only once that the employee or family member has a serious health condition.

The proposed forms also provide additional instruction and definitions. For example, the terms “next of kin” and “in loco parentis” are defined in the forms. The forms define “serious health condition” for health care providers, and include examples of certain conditions that might meet the definition (i.e., Alzheimer’s disease is a permanent or long-term condition, while diabetes or migraine headaches may qualify as chronic conditions).

The proposed revised forms are:

WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition

WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition

WH-381 Notice of Eligibility of Rights & Responsibilities

WH-382 Designation Notice

WH-384 Certification of Qualifying Exigency for Military Family Leave

WH-385 Certification for Serious Injury or Illness of Covered Servicemember—for Military Family Leave

WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave

The DOL is accepting public comments until October 4, 2019. Contact a Jackson Lewis lawyer for additional information regarding these proposed changes and submitting comments to the DOL.

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.