With the New Year fading from view in the rearview mirror and spring on the horizon (at least for those of us in the Midwest), there are several signs that disability and leave management issues will continue to be hot topics in 2018.

First, a review of the EEOC’s press releases from the first two months of this year suggests a continued focus by the Commission on disability and leave management issues. Since the start of the year, the EEOC has filed six lawsuits alleging claims of disability discrimination, including two cases which appear to involve requests for leave as a reasonable accommodation under the ADA.  Further, the EEOC’s press releases reveal that the Commission has collected $405,500 from employers in the past two months in settlement of disability discrimination claims.  There is no reason to believe that EEOC scrutiny of disability or leave management issues is likely to dissipate anytime soon.

Second, on January 18, 2018, after a landmark decision for employers in which the U.S. Court of Appeals for the Seventh Circuit held that a request for a two-to-three-month leave of absence is not a reasonable accommodation under the Americans with Disabilities Act, the plaintiff in Severson v. Heartland Woodcraft, Inc. petitioned the Supreme Court to review his case.  Specifically, the plaintiff/petitioner asked the Supreme Court to decide if there is a “per se rule that a finite leave of absence of more than one month cannot be a ‘reasonable accommodation’ under the ADA.”  The defendant/respondent filed a brief opposing the request on February 14, 2018, framing the issue as “[w]hether an employee seeking a multi-month leave of absence following three months of FMLA leave is a ‘qualified individual’” under the ADA “given that such leave of absence does not enable the employee to ‘perform the essential functions of the employment position’…during the period of leave.”

While it is unclear whether the Supreme Court will agree to hear the case, we previously predicted that the importance of the Seventh Circuit ruling makes Severson a likely candidate for review by the high court.  We will continue to monitor the Supreme Court docket for further updates.

The House of Representatives has passed the “ADA Education and Reform Act” (HR 620) with an 85-percent vote in favor of passage (including 12 Democrats).  Prior to filing a lawsuit under Title III of the Americans with Disabilities Act, the bill requires potential plaintiffs to provide businesses with both notice of architectural barriers as well as an opportunity to remove them during a cure period.

Given the recent surge in the number of ADA Title III lawsuits, HR 620 is largely seen as an attempt to slow the growing trend of repeat plaintiffs, who routinely commence multiple lawsuits (in some cases, hundreds of cases) against businesses to extract settlements based on minor physical access barriers in the buildings and facilities.

Under the bill, a potential plaintiff needs to send a business a pre-suit notice that sets forth the following:

1)  “a written notice specific enough to allow such owner or operator to identify the barrier”;
2)  a description of “the circumstances under which the individual was actually denied access to a public accommodation, including the address of the property”;
3)  an indication of “whether a request for assistance in removing an architectural barrier to access was made”; and
4)  “whether the barrier to access was a permanent or temporary barrier.”

If the business fails to respond to the issuer of the pre-suit notice within 60 days of sending the notice with a description of the improvements it will make to remove the alleged barrier, the potential plaintiff can file a lawsuit.  Likewise, if the business responds as described above, but it fails to remove the barrier or make “substantial progress” toward doing so within 120 days, a lawsuit can be filed.

The bill further requires the Disability Rights Section of the U.S. Department of Justice to devise a program to educate property owners and state and local governments about the ADA’s requirements.  HR 620 also mandates the Judicial Conference of the United States to develop a model program of alternative dispute resolution mechanisms to facilitate mediation and early dispute resolution, rather than costly litigation of ADA claims over alleged architectural barriers.

Supporters of the bill suggest that the pre-suit notice will advance the ultimate objectives of Title III of increasing accessibility.  Detractors, on the other hand, have suggested it would cause businesses to take a wait-and-see approach, that is, wait for the notice before taking action.  However, the relatively short timeframe for response and remediation should help alleviate those concerns.

To date, the Senate does not have a meaningful companion bill and little action has been taken by it.  As a result, it is unclear whether HR 620 (in its current or a modified version) will become law.

The legislation, if enacted, applies only to claims under Title III.  Many states and cities have enacted their own public accommodations laws that permit a court to award reasonable attorney’s fees to a prevailing plaintiff.  Unless these jurisdictions enact similar legislation requiring pre-suit notice, the federal legislation could have the unintended effect of moving more of these lawsuits to state court.

 

If you have any questions regarding HR 620 or Title III compliance, please reach out to our Disability, Leave and Health Management Practice or the Jackson Lewis attorney with whom you regularly work.

Although both medicinal and now recreational consumption of marijuana have been legalized in California, this legalization did not impact an employer’s right to discipline or even terminate employees for marijuana use. That could change for medical marijuana users if a bill pending before the California legislature becomes law.

Continue Reading Pending California Legislation Alert! Recently Introduced Bill Seeks to Protect Medicinal Marijuana Users from Employment Discrimination in California

“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the thirteenth in a series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Not properly issuing an employee the FMLA Designation Notice.

Employers must designate leave as FMLA-qualifying, in writing, within five business days of when employers have enough information to determine whether the leave is being taken for an FMLA-qualifying reason. 29 C.F.R. § 825.300(d)(1). When an improper designation notice is issued, courts often determine whether an employee’s FMLA rights were interfered with by turning the analysis to whether the employee was prejudiced.

In Rengan v. FX Direct Dealer, LLC, 2017 U.S. Dist. LEXIS 123456 (S.D.N.Y. August 04, 2017), the court found that the employee was not prejudiced by her lack of proper designation notice. In this case, the employee learned she was pregnant and requested FMLA leave. The employer verbally informed the employee that her leave would begin on the date of her child’s birth, and that she was expected to return to work twelve weeks from that date. However, the designation notice was improper because it was not written. The employee, insisting on more time off to secure childcare services, refused to return to work at the end of her leave, and was terminated. Despite the improper designation notice, the court determined that the employee was not prejudiced, because she could not show that with proper notice she would have returned to work when she exhausted her twelve weeks of leave.

In Ross v. Youth Consultation Serv., 2016 U.S. Dist. LEXIS 179693 (D.N.J. December 29, 2016), the court determined that the employee was prejudiced by her lack of designation notice. Here, the employer granted the employee’s FMLA leave request to receive multiple surgeries for her chronic hip condition, and issued a designation notice understanding that her return to work date was unknown. Two weeks later, however, the employee provided a physician’s note indicating that she needed six months of leave. The employer ultimately terminated the employee when she did not return to work after she exhausted her twelve weeks of FMLA leave. The court found that the employer should have issued a revised designation notice to inform the employee that her leave would exceed the twelve weeks of FMLA.  In the court’s view, this lack of a revised designation notice prejudiced the employee because she could have made the decision to delay her second surgery until she requalified for FMLA, thus preserving her employment.

Employers should analyze each FMLA leave situation to make sure a proper FMLA Designation Notice is issued. The U.S. Department of Labor Wage and Hour Division has Designation Notice forms available for employer to use at www.dol.gov/whd/forms/WH-382.pdf.

With the increase in the number of states that require various types of paid leave, now is a good time to examine your leave policies.  While often overlooked, one policy that could expose an employer to liability is its maternity leave or parental leave policy. 

 As the EEOC’s Guidance on Pregnancy Discrimination and Related Issues makes clear, leave related to pregnancy, childbirth, or related medical conditions can be limited to women affected by those conditions.  However, to the extent that the employer is providing leave for purposes of bonding with or providing care to a child, that “must be provided to similarly situated men and women on the same terms.” 

The risk arises in an employer policy that does not make a distinction between medical-related leave and leave for child bonding or child care, yet provides greater leave time entitlement to female employees than male employees.  One example is a policy that simply provides twelve weeks to female employees for “maternity leave” and two weeks to male employees for “paternity leave.”  Another example is a maternity leave policy that provides no leave to male employees.  Such policies could prompt the EEOC or a state civil rights agency to come knocking.

In light of the EEOC’s guidance and as a best practice, employers should use appropriate terminology in their policies to distinguish between leave related to any medical conditions or physical limitations imposed by pregnancy or childbirth, including recovery from childbirth (medical/maternity leave) and leave for purposes of child bonding or care (bonding time/parental leave).  If the term “maternity leave” is used, it should be defined in the policy.  Further, it should be clear in the policy that non-medical parental leave is being provided equally to women and men.  Employers should also ensure that their parental leave policy is consistent with any legal obligations under the Family and Medical Leave Act and state law.

Austin, Texas Passes Paid Sick and Safe Leave Law                                                                

Early this morning the Austin City Council passed a long-discussed ordinance requiring employers to provide employees with paid sick and safe leave (“PSL”). Austin is the first city in the South ever to enact such a law.

Highlights of the New Austin Ordinance:

  • Effective October 1, 2018, employers must provide employees who work at least 80 hours in Austin in a calendar year to accrue PSL at the rate of one hour for every 30 hours worked, up to 64 hours annually (48 hours for employers with 15 or fewer employees).
  • PSL may be used for the employee’s or a family member’s illness, injury, health condition or preventive care, or as necessary to deal with domestic abuse, sexual assault or stalking involving the employee or a family member.
  • Unused sick time is carried over to the following year. However, an employer may cap annual PSL use (as opposed to accrual) at 8 days.
  • Employer handbooks must provide notice of these rights; posters to be issued by the City of Austin must be displayed.
  • Employers must provide a statement showing available PSL on at least a monthly basis.
  • An employer can create reasonable procedures to verify employees’ PSL requests. The ordinance specifically requires employees’ to timely request PSL “before their scheduled work time,” although employers may not prevent employees from using earned sick time for an “unforeseeable qualified absence.”
  • An employer may restrict an employee’s use of accrued PSL during an employee’s first 60 days of employment if the employer can establish “that the employee’s term of employment is at least one year.” How an employer can establish that, especially with respect to an at-will employee, is not addressed.
  • Employers may not condition the use of sick time on the employee finding a replacement for the time missed.
  • An employee transfer with the same employer does not impact the amount of earned sick time or the employee’s right to use it; if an employee returns to work for the same employer in a six month period, the employee may use previously earned sick time.
  • Employers may not retaliate against employees for requesting or using earned sick time, for reporting a violation, or for trying to exercise their rights to paid sick leave pursuant to the ordinance.
  • The ordinance will be enforced by the City of Austin Equal Employment Opportunity/Fair Housing Office. Implementing rules are expected to follow. A civil penalty of up to $500 applies for each violation.

Impact of Employer Size:

  • The effective date for most employers (with more than five employees) is October 1, 2018.
  • For employers with five or fewer employees, the law takes effect on October 1, 2020.
  • For employers with fifteen or fewer employees, the 64 hour required accrual is reduced to 48 hours annually.

What Employers Must Do:

As the October 1, 2018 effective date approaches, private employers with employees in Austin should review leave policies, procedures, payroll practices and notices to ensure compliance. Of note, although Austin is the first Southern city to pass a paid sick and safe leave law, it is part of the paid sick leave trend spreading from coast to coast.

State and local governments prefer to pass local leave laws in order to tailor to regional businesses and economies. And recently, the federal government has taken up the issue; Congress has introduced dueling bills from both sides of the aisle addressing paid sick leave, the Healthy Families Act and Workflex in the 21st Centuries Act (WFA). Meanwhile, employers with a national workforce face a variety of paid and unpaid leave laws, company-provided paid time off policies, and disability benefit obligations, which may or may not run concurrently and in some cases, contradict one another.

Paid sick leave laws are here to stay. Currently over 40 jurisdictions have passed such laws, and federal contractors are required to provide paid sick leave pursuant to the federal executive order 12988. Employers with a workforce in multiple jurisdictions must review and determine whether existing policies comply with the variety of paid leave laws. Such a review must include assessment of required record-keeping, handbook notice, and poster obligations as well as ensuring pay statement or other informational systems are in place to provide employees the required accrual and usage information.

Jackson Lewis is helping clients create compliant and comprehensive leave management programs as well as update policies, handbooks and notices. If you have employees in Austin, now is the time for such a review to prepare for the October 1st deadline. For additional information about Austin’s ordinance, a leave management program analysis, or other leave management issues, contact the Jackson Lewis attorney with whom you regularly work.

The New York Paid Family Leave (NY PFL) law has been in effect for over a month, yet reports indicate that many New York employers are not prepared for the operation requirements of the law. The basics of the law shouldn’t be news to employers with employees in New York. The NY PFL law provides employees with job-protected, paid leave to bond with a new child, to care for a family member with a serious health condition, or due to a qualifying exigency that arises when a family member is deployed abroad on active military duty.  If you need a refresher on the law’s basics, review this NY PFL At-A-Glance and watch Jackson Lewis’s recorded webinar.

As employees are beginning to request NY PFL benefits, many employers find they still have questions, or didn’t quite prepare to implement the new law. One survey found that less than a third of employers surveyed were adequately prepared by January 1, 2018 to offer NY PFL benefits to their workforce.  This means most employers need a NY PFL check-up. It’s not too late for employers to check in and reassess their NY PFL preparedness.

Use this check list to conduct an employer self-assessment to determine NY PFL compliance preparedness.

We are also offering some FAQs for those NY PFL questions that are beginning to arise, or that employers may not even realize they have yet! Did you know:

  • an employee may receive New York City’s Earned Sick Time and NY PFL benefits concurrently? If the employee is eligible for sick time and NY PFL benefits, the leave reason qualifies under both laws, such as to care for a family member, and the employer’s policy allows an employee to elect to use accrued sick time to receive full pay during family leave then an employee can receive the two benefits simultaneously.
  • the minimum weekly benefit payment is $100? Or, if an employee’s weekly pay at the time of NY PFL leave is less than $100, the NY PFL benefit must in the amount of that weekly pay.
  • if an employee returns NY PFL certification forms late, the request for benefits cannot be denied? Rather, benefits are not required to be paid for any period more than two weeks prior to the date on which the employee provided the required forms.
  • if two family members work for the same employer and are eligible for NY PFL benefits, they can both receive benefits and take time off? However, an employer can allow only one employee at a time to bond with the same child or care for the same family member.
  •  if an employee requests FMLA leave for a reason that also qualifies under NY PFL, such as to care for a family member, an employer can require that the employee’s NY PFL benefits run concurrently. This avoids stacking of leave where an employee first requests FMLA leave and then requests NY PFL leave and benefits after FMLA entitlement exhaust

Remember, NY PFL benefits increase over the next four years so employers should continue to refine their policies and processes to stay current with this evolving law. Jackson Lewis can help employers coordinate NY PFL policies and administration with other employer benefits and federal, state, and local paid and unpaid leave laws as well as navigate the nuances of the NY PFL law. If you are self-insuring NY DBL benefits, Jackson Lewis attorneys can help develop a claims administration process and answer any day-to-day questions that may arise.

You have just received an e-mail alerting you to a FIDO issue and you are wracking your brain to recall the statute for which FIDO is an acronym. Then you read on and learn the email is from your new HR specialist who seems to put everything in “caps” and the question is about dogs in the workplace. You tell yourself it could be worse. Miniature horses are included within the definition of service animals that must be permitted in places of public accommodation.

 

You read on and learn that one of your customer service reps has started to bring his golden doodle into the workplace because he says Sparky helps keep him focused, keeps his anxiety symptoms in check and stops him from spouting off at dissatisfied customers. You are worried that if you permit this other workers are going to want to do the same thing and the workplace is enough of a zoo already.  To make things more difficult, there are other workers who (perish the thought) don’t like animals, are scared of them or may have allergies.

 

Although it presents a challenge, it requires you to use the same tools you bring to other disability-related accommodation requests—that is, you need to engage in the interactive process to determine how this request can be accommodated without causing your business an undue hardship. You may have to set certain boundaries and make sure that other workers’ contact is limited. You may have to allow additional breaks for the dog to walk and do what dogs do.

 

The things to keep in mind—as with all accommodation requests—are the job requirements so that you can analyze the situation on a case by case basis. You will need to take into account what services the animal is trained to provide. It is not a one-way street. As in all cases, employees need to recognize that the ADA’s interactive accommodation process requires a willingness for both sides to work together. You should also be aware employers can ask for documentation and information to support a request to use an animal in the workplace. This is not the case for businesses under the ADA’s public accommodation provisions.

 

Animals that are trained to provide specific services such as helping visually impaired workers complete their tasks or who can sense the onset of diabetic comas present one set of issues but the growing use of emotional support animals to help alleviate anxiety often pose more subtle analysis. There really are no rules as to what is acceptable or not and employers need to tread carefully when evaluating these requests.

 

You can require the animal to be well-behaved, house-broken and quiet. You may need to move the worker but you don’t want to isolate her because of her need to be accommodated. All of this should not be news. It is the same analysis you need to engage in with other requests for a disability related accommodation.

 

This will test your HR Superpowers but by keeping the interactive process open and using the same tools to resolve any conflicts that arise you should be alright. Not all dogs need be allowed in the workplace, but separating the Wheaton from the Mastiff is going to require a subtle analysis that should have you consulting with your employment counsel lest you end up in the dog house yourself.

 

Employers who offer short-term and long-term disability plans governed by the Employee Retirement Income Security Act (ERISA), and their plan administrators, need to prepare for the approaching April 1st deadline of the new claims handling regulations.  Employer action items can be found in our article posted here. The ERISA regulations were effective January 2017, but were delayed until April 1, 2018. The U.S. Department of Labor (DOL) has confirmed the ERISA disability claims administration regulations will not be delayed or revised further, according to the DOL’s recent announcement.

Jackson Lewis attorneys are available to assist employers, plan administrators, and TPAs to ensure compliance by April 1st.

In October 2016, AARP sued the Equal Employment Opportunity Commission (“EEOC”) under the Administrative Procedures Act (“APA”) arguing that there was no explanation for the shift in the EEOC’s position relating to what makes participation in a wellness program “voluntary”.  Originally, the EEOC argued that in order for a wellness program to be “voluntary,” employers could not condition the receipt of incentives on the employee’s disclosure of American with Disabilities Act (“ADA”) or Genetic Information Nondiscrimination Act (“GINA”) protected information.  However, under the wellness regulations, the EEOC now takes the position that an incentive of up to 30 percent of self only coverage would not render a program involuntary.  AARP argued that participation in a wellness program was not truly “voluntary” if an employee must choose between receiving a 30 percent decrease in health insurance premiums or providing their family’s personal health information to their employers. See AARP v. EEOC.

On August 22, 2017, AARP scored a win when U.S. District Judge John Bates granted AARP’s motion for summary judgment, finding that the EEOC had not sufficiently explained why programs that allowed employee participation incentives of up to 30 percent of the cost of the employee’s health insurance premiums didn’t violate the ADA or GINA requirements that such programs be voluntary. August 22, 2017 Opinion.  Shortly thereafter, AARP filed a Motion to Alter or Amend the Judgment asking the Court to either (1) vacate the wellness regulations but stay the mandate until January 1, 2018, or (2) issue an injunction against enforcement of the regulations effective January 1, 2018.  The EEOC opposed the motion stating that a “2018 vacatur of the Rules would be too disruptive for employers and employees.”

The Court’s December 20, 2017  Memorandum Opinion rejected AARP’s argument that the wellness regulations should be halted January 1, 2018.  Judge Bates determined that the current rules should remain in effect until January 1, 2019 in order to give the EEOC time to issue interim or revised rules on the issue.  The Opinion goes on to state that the “Court will also hold the EEOC to its intended deadline of August 2018 for the issuance of proposed rulemaking…but an agency process that will not general applicable rules until 2021 is unacceptable. Therefore, EEOC is strongly encouraged to move up its deadline for issuing the notice of proposed rulemaking, and to engage in any other measures necessary to ensure that its new rules can be applied well before the current estimate of sometime in 2021.”

In response to Judge Bates’ December 20th Opinion, the EEOC filed a Partial Motion for Reconsideration alleging that there was no basis for the Court to retain jurisdiction over the matter or to set deadlines for the EEOC to issue public notice and to file a status report with the Court.  The EEOC argued that “whether to amend or scrap the portions of the rules the court found illegal, and on what schedule, is entirely within the EEOC’s discretion.” Therefore, the EEOC has asked the Court to reconsider these aspects of its ruling.

In light of these decisions—and the uncertainty surrounding the future of the wellness regulations—employers should continue to run their wellness programs in accordance with the current regulations for 2018, but anticipate a change in the future.

For our previous blogs in this case, please see EEOC’s 2016 Wellness Program Regulations, The Saga Continues… AARP Suffers a Setback in its Challenge to the EEOC’s Wellness Regulations