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.

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.

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.

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.

 

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.

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.

Last week Governor Bevin signed Senate Bill 18, the Kentucky Pregnant Workers Act. The Act amends the Kentucky Civil Rights Act (KCRA) and applies to employers with 15 or more employees within the state in each of twenty (20) or more calendar weeks in the current or preceding calendar year, as well as any agent of the employer. The new law requires employers to provide reasonable accommodations to employees who are limited due to pregnancy, childbirth, and related medical conditions, unless it would impose an undue hardship on the employer to do so. The law includes lactation and the need to express breastmilk for a nursing child as a related medical condition that must be reasonably accommodated absent undue hardship.

The law provides the following examples of reasonable accommodations an employer may have to provide to an employee who is limited due to her pregnancy, childbirth, or related medical condition:

  • More frequent or longer breaks
  • Time off to recover from childbirth
  • Acquisition or modification of equipment
  • Appropriate seating
  • Temporary transfer to a different job
  • Modified schedules
  • Light duty
  • Private space to express breastmilk other than a bathroom

In determining whether an undue hardship exists, an employer must consider, among other things, the duration of the requested accommodation and whether the employer has a policy of providing, has provided in the past, or is currently providing similar accommodations to other employees due to any reason. If such a policy or practice exists, then a rebuttable presumption is created that the accommodation does not impose an undue hardship on the employer. This rebuttable presumption is sure to cause chaos for a while, as the statute is very broadly worded.

The new law also provides that an employee shall not be required to take leave from work if another reasonable accommodation can be provided. The law expressly requires the employer and employee to engage in a timely, good faith, and interactive process to determine effective reasonable accommodations.

The statute becomes effective June 27, 2019. By June 27, employers must post a notice of the new law. In addition, employers must begin providing notice to new employees upon commencement of employment of their right to be free from discrimination based on pregnancy, childbirth, and related medical conditions, and their right to be reasonably accommodated for such conditions. By July 27, 2019, employers must provide similar written notice to current employees.

As a Kentucky employer, you may be asking yourself, does the Kentucky Pregnant Workers Act really require me to do something different from what I’m already doing under the various other laws and court decisions protecting pregnant employees? The answer is yes. Kentucky’s new law expands the scope and breadth of what must be provided. It requires employers to accommodate employees who are limited –not just disabled under the ADAAA or KCRA, or unable to perform an essential function of their job due to serious health condition under the FMLA. That’s a big difference. What does it mean to be “limited?” Who decides whether a pregnant employee is “limited?” In addition, employers covered by the FLSA are only required to provide non-exempt employees with lactation breaks (subject to an undue hardship defense for smaller employers) and a private space other than a bathroom to express breastmilk for up to one year. However, the Kentucky statute also applies to exempt employees and does not place any limit on how long an employer is required to accommodate a nursing mother.

If you have any questions regarding the new Kentucky law or need assistance updating your handbook policies and preparing the required notices, please contact the Jackson Lewis attorney with whom you regularly work.

“What did I do wrong?” and “Am I doing this correctly” are frequent questions from clients regarding FMLA administration. This is the 22nd blog in this series, which digs into the FMLA regulations to address discrete mis-steps that can result in legal liability.

Not taking into account the interplay of the federal FMLA and “state FMLA” laws.

This post takes on a bit of a different twist by expanding beyond the federal FMLA. A common mistake employers can make in FMLA leave management is not taking into account “state FMLA” leave laws that might provide different or additional rights than the federal FMLA.

Employers can unintentionally overlook state FMLA leave laws, particularly if an employer has remote workers or small numbers of employees across multiple “state FMLA” jurisdictions.

The nature of these laws vary, some adding additional family members to the definition of a covered family member, some setting lower employee thresholds for leave eligibility, some providing for only additional family leave rights, and some mirroring the federal FMLA more closely but providing leave over a longer period of time.

Currently, the following states have “state FMLA” leave laws:

  • California
  • Colorado
  • Connecticut
  • District of Columbia
  • Hawaii
  • Maine
  • New Jersey
  • Oregon
  • Rhode Island
  • Vermont
  • Wisconsin

Additionally, the Miami-Dade County Family Leave Law in Florida requires the same leave as Federal FMLA for Miami-Dade County employees, with the addition of leave to care for a grandparent with a serious health condition on the same terms and conditions as leave under the FMLA to care for a parent with a serious health condition.

In jurisdictions with state FMLA leave laws, employers should consider comparing the state law with the federal FMLA to determine any additional rights to which employees may be entitled. These laws also typically have their own notice requirements.  In some states, a state-specific policy may be appropriate, or required. Overlooking these details could result in liability under state law.

 

Westchester County has released a model Notice of Employee Rights for the Westchester County Earned Sick Leave Law (“WCESLL”), effective April 10, 2019.

According to FAQ’s released simultaneously, starting on April 10, 2019, 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 July 10, 2019 to provide copy of the law and written notice to eligible current employees.

The Notice confirms that any employee who works 80 hours or more in a calendar year in Westchester County is eligible to accrue sick leave under the WCESLL.  Starting on July 10, 2019, all eligible employees who work for companies with five or more employees are entitled to start accruing one (1) hour of paid  sick leave for every thirty (30) hours worked up to 40 hours of sick leave in a year.  Eligible employees who work for companies with less than five employees are entitled to accrue up to 40 hours of unpaid sick leave in a year.  Employers must allow eligible employees to use sick leave for all the reasons outlined in the WCESLL, not just absences due to an employee’s own illness.

The WCESLL also requires that employers post a poster in English, Spanish and any other language deemed appropriate by the County of Westchester, in a conspicuous location.  The County has not released a model posting to date.

For more information about WCESLL, please see our blog What Employers Can Do Right Now To Prepare For Westchester County’s Earned Sick Leave.

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.

The Fourth Circuit has reaffirmed its position that regular and reliable attendance is an essential function of most jobs.  The Court held that an employer did not violate the Rehabilitation Act by taking adverse action against an employee because of her attendance issues—even though they were caused by her mental illness.  Hannah P. v. Coats, No. 17-1943 (4th Cir. Feb. 19, 2019).

While the disability discrimination claims in Coats arose under the Rehabilitation Act, the same analysis would apply under the Americans with Disabilities Act.  The Fourth Circuit’s thorough opinion offers helpful guidance for employers attempting to balance their need for reliable attendance with their obligations under federal discrimination laws.

Background

Hannah was hired by the Office of the Director of National Intelligence (“DNI”) for a five-year term in March 2011.  Shortly after being hired, she was diagnosed with depression.  Hannah immediately informed her supervisors of her diagnosis, but did not request an accommodation at that time.  By March 2015, Hannah’s co-workers and supervisors observed that her attendance was becoming erratic—including days where Hannah would come to work extremely late or would be unreachable for hours.

On March 19, 2015, Hannah’s supervisors met with her to directly address her attendance issues.  Together with Hannah, they developed a plan that required Hannah to arrive at work by 10 AM and to provide advance notice if she was going to be absent or late.  Despite the plan, Hannah continued to arrive late or miss work without advance notice.  On April 9, 2015, Hannah’s supervisors informed her that the plan was not working, and they referred her to the Employee Assistance Program (“EAP”).  Despite Hannah’s participation in EAP, her attendance problems persisted. Hannah requested four weeks of medical leave based on the recommendation of her psychiatrist.  Hannah’s leave request, after being withdrawn and renewed, was ultimately approved after a two-week delay.

Before taking her medical leave, Hannah applied for several permanent positions with DNI.  An interview panel recommended her for one position.  However, she was not selected after DNI’s Chief Management Officer recommended that she not be selected because her performance was “not consistent with a potentially good employee.”  All of Hannah’s applications for a permanent position were rejected, and Hannah’s employment ended in March 2016 at the end of her five-year term.

Among other claims, Hannah asserted that DNI violated the Rehabilitation Act by (1) failing to accommodate her depression; (2) requiring her to undergo a medical examination; and (3) refusing to hire her for a permanent position.

Fourth Circuit Decision

The Fourth Circuit affirmed summary judgment for the employer on Hannah’s Rehabilitation Act claims.  However, Chief Judge Gregory wrote a separate opinion in which he dissented as to Hannah’s Rehabilitation Act claims.

The Court held that DNI provided Hannah with a reasonable accommodation by working with her to develop an attendance plan.  When Hannah’s attendance issues continued, Hannah’s supervisors attempted a new accommodation—referring Hannah to EAP.  Hannah argued that DNI failed to accommodate her by improperly rescinding the attendance plan accommodation and unilaterally sending her to EAP counseling.  The Court rejected this argument, explaining that the employer “has the ultimate discretion to choose between effective accommodations” and noting that Hannah’s supervisors only acted unilaterally when the attendance plan accommodation did not work.  The Court also rejected Hannah’s argument that her request for medical leave was improperly delayed.  The Court explained that the delay was less than a month, and Hannah’s supervisors were actively considering her request during that time.

The Fourth Circuit also rejected Hannah’s claim that the EAP counseling to which she was referred constituted a prohibited medical examination.  As a threshold matter, the Court noted that EAP’s policies make clear that EAP is intended to be used as a voluntary counseling service, and not as a mandatory medical examination that would violate the Rehabilitation Act.  Even if EAP was a mandatory medical examination under the facts of this case, the Fourth Circuit held the referral to EAP was not unlawful because it was “job-related and consistent with business necessity.”

Finally, the Fourth Circuit held that DNI did not violate the Rehabilitation Act by failing to select Hannah for a permanent position because of her attendance issues.  The Court explained: “Hannah might have been exceptionally talented and substantively good at her job, but . . . in addition to possessing the skills necessary to perform the job in question, an employee must be willing and able to demonstrate these skills by coming to work on a regular basis.”  The Court rejected Hannah’s argument that because her disability was the cause of her attendance issues, her employer could not deny her a job opportunity on that basis: “We have no doubt that Hannah’s struggle with depression was the cause of her attendance issues, and we are sympathetic to the toll this condition took on a highly talented employee.  However, [DNI] was nevertheless permitted to take Hannah’s attendance issues into account in its decision whether to hire her” for a permanent position.

Takeaway

Hannah reiterates the Fourth Circuit’s position that regular, reliable attendance is an essential function of most jobs.  However, the lengths to which an employer must go to provide an accommodation to an employee with disability-related attendance problems remains a fact-intensive inquiry.