Election Day 2016 saw voters approve new marijuana laws in seven states. There are now a total of 28 states (plus the District of Columbia) with medical marijuana laws and 8 states (plus the District of Columbia) with recreational marijuana laws. Arizona’s proposed recreational marijuana law did not pass. Read the full article on Jackson Lewis’ website.

On Election Day, voters in Arizona and Washington approved measures requiring employers in their respective states to provide paid sick leave and requiring employers to raise the minimum wage. They join the PSL states of California, Connecticut, Massachusetts, Oregon, and Vermont and an ever growing patchwork of cities and counties. Continue Reading Arizona and Washington Join The PSL Patchwork

Although the EEOC rarely files suit seeking to redress violations of the Genetic Information Nondiscrimination Act of 2008 (“GINA”), on October 31, 2016, the United States District Court for the Eastern District of New York entered a three year consent decree against a New York home health agency in a class action brought by the EEOC which alleged violations of Title II of the Act.  In Equal Employment Opportunity Commission v. BNV Home Care Agency, Inc., Case No. 14-cv-5441 (E.D.N.Y. Oct. 31, 2016), the EEOC alleged that the defendant, a home health agency, maintained a policy of unlawfully requesting genetic information from a class of applicants and employees.  The EEOC alleged that the home health agency violated GINA when it asked applicants and employees to provide family medical history on the company’s “Employee Health Assessment” form.  Specifically, applicants and employees, including home health aides, were asked to identify whether they or any family members had experienced any of a list of 29 medical conditions including diabetes, kidney disease, heart disease, high blood pressure, arthritis, mental illness, epilepsy or cancer.  The company claimed that it requested the information from applicants and employees for the protection of its patients.

Although the Court did not rule on the merits of the case, it approved a three year consent decree entered into between the EEOC and the home health agency which mandated injunctive relief, training, posting and distribution of notice regarding resolution of the lawsuit, ongoing reporting and compliance obligations, and the payment of $125,000 to a class of affected applicants and employees.  Continue Reading Court Approves Three Year Consent Decree in Case Brought by the EEOC for Alleged Violations of GINA

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

Not recognizing employee notice of the need for FMLA leave.

Recognizing an employee’s notice of the need for FMLA leave can be tricky.  When an employee requests FMLA leave, or when the employer acquires knowledge that an employee’s need for leave might be FMLA-qualifying, the employer’s FMLA obligations are triggered.  An employee does not have to specifically state, “I need FMLA leave.”  Failure to recognize when an employee might need FMLA leave could result in a claim of FMLA interference.

In a recent case, the court refused to grant an employer’s motion for summary judgment because whether the employee provided adequate notice of the need for continuing FMLA leave was a question of fact to be decided by the jury.  In Francisco v. Southwestern Bell Telephone Co., Civil Action No. H-14-3178 (S.D. Tex. July 25, 2016), an employee needed continued FMLA leave after the employee’s short-term disability benefits ended. While on FMLA leave, the employee had temporarily relocated from Texas to Florida to care for his ill father. Although the employee failed to communicate with his supervisors locally, two facts were key to the court’s decision: (1) the employee updated his contact information while on leave with the company’s corporate office, and (2) prior to the deadline to submit a certification, the employee communicated to the company’s benefits department that he was attempting to comply with the medical certification requirements for additional leave but was unable to do so within the 15-day time frame because his doctor was out of the office due to a medical emergency.  Although the employer argued that the employee did not provide adequate notice because the employee did not communicate with his local management, the court determined that the above two facts created an issue of fact as to whether the employee provided adequate notice his continuing need for FMLA leave.

In Guernsey v. City of Lafayette, No. 4:13-cv-00086 (N.D. Ind. Aug. 12, 2016), the court decided that an employee failed to put the employer on sufficient notice of his potential need for FMLA leave.  The court explained that an employee’s notice obligation is satisfied so long as the employee provides information sufficient to show that the employee likely has a FMLA-qualifying condition.  The employee alleged that the employer know of his chronic pain and absence related to pain for years, but he gave his employer only limited information about his absences.  Doctor notes submitted by the employee did not address the nature of the medical issues, but merely indicated that the employee was “ill,” “seen” by a doctor, and/or should be “excused” from work.  The employee also refused to provide more information about his absences in response to his supervisor’s request.  The employee’s doctor also informed the employer that the employee could return to work to “full activity without limitations.”  Finally, for the last absence leading to termination, the employee simply told his supervisor that his back was “bothering” him.  The court determined that this information, together, did not suggest that the employee’s health condition might be serious or that FMLA otherwise could be applicable.

Case law on this issue is particularly fact specific, and employers should keep in mind that “notice” of an employee’s need for leave can arise under unique fact patterns.  Sufficient notice is also an important topic to include when training managers and supervisors on the FMLA.  Supervisors are often the first individuals within the company to learn of an employee’s potential need for leave, and they should be trained on what could constitute an employee’s notice of the need for FMLA leave, and to promptly follow up with Human Resources, so that the company can meet its FMLA obligations.

On October 31, 2016, the Fourth Circuit Court of Appeals issued a decision that confirmed an employer’s right to take adverse employment action against an employee who fraudulently uses FMLA leave. In Sharif v. United Airlines, Inc., Case No. 15-1747 (4th Cir., Oct. 31, 2016), the Court upheld United Airlines decision to discharge Masoud Sharif for fraudulently using FMLA leave, finding that “[t]o hold otherwise would disable companies from attaching any sanction or consequence to the fraudulent abuse of a statute designed to enable workers to take leave for legitimate family needs and medical reasons.”

Sharif and his wife, both employees of United, took a scheduled vacation to South Africa and Italy from March 16 through April 4, 2016. While Sharif’s spouse was able to use approved vacation for the entire time period, Sharif was unable to obtain approved time off for his scheduled shift on March 30.  On the morning of March 30 (at 1:00 a.m. Eastern Standard Time), Sharif called United and requested intermittent FMLA leave pursuant to a certification already in place for his anxiety disorder.  The following day, Sharif and his wife traveled from South Africa to Italy where their vacation continued.  After United noticed that Sharif had used FMLA leave for the only shift that he was scheduled to work in the middle of a lengthy vacation, an investigation was conducted into his use of FMLA leave.  When United questioned Sharif about his absence on March 30, he initially denied being scheduled to work that day and then provided a constantly shifting story about suffering a panic attack after not being able to secure a seat on a flight back to the United States.  However, Sharif was unable to provide any evidence to United of his attempts to secure a flight home for his scheduled shift on March 30.  After United notified Sharif of its intent to terminate his employment for fraudulent use of FMLA leave and dishonesty during the investigation, Sharif decided to retire and then filed suit against United alleging retaliation for his use of FMLA leave.

In rejecting Sharif’s claims under the FMLA, the Fourth Circuit relied on the Department of Labor’s pronouncement that an employee who fraudulently obtains FMLA leave is not protected by the FMLA’s provisions related to reinstatement and benefits protection. 29 C.F.R. § 825.216(d).  Importantly, the Court stated that “[w]hile a company may not deny valid requests for leave, and an employer cannot use allegations of dishonesty as a pretext for subsequent retaliation, it is equally important to prevent the FMLA from being abused.”

One important takeaway from this case for employers relates to investigations of FMLA abuse. Here, Sharif argued that United failed to conduct an adequate investigation of the alleged fraud before taking adverse action.  However, in rejecting that claim, the Fourth Circuit held that United had made a “reasonably informed and considered decision” before terminating Sharif.  Based upon this decision, employers who conduct a thorough investigation before taking adverse action against an employee suspected of leave abuse should be better suited to defend against subsequent claims of FMLA retaliation.

The U.S. Department of Labor (DOL) is looking to collect data from employers and employees regarding their respective “need for” and “experience with” the Family and Medical Leave Act (FMLA).  The data collection period is expected to occur in 2017 and 2018.  From employees, the survey will seek information regarding “use of leave, need for leave, and [] experience with FMLA-eligible leave.”  For employers, the surveys will seek information regarding “employee use of leave and [] experience managing FMLA leave.”

The latest “wave” of surveys is expected to expand and update information gathered from prior surveys conducted in 1995, 2000 and 2012.  The DOL issued a fact sheet  in 2012 summarizing some of its findings and noted: “[o]n the 20th Anniversary of the FMLA, DOL can conclude that the FMLA continues to make a positive impact on the lives of workers without imposing an undue burden upon employers.”  In that survey, 85% of employers reported “that complying with the FMLA is very easy, somewhat easy, or has no noticeable effect.”  Would you agree?

The DOL created two proposed data collection surveys and is currently seeking comments on or before December 27, 2016.

 

 

CaliforniaAs if paid sick leave wasn’t scary enough!  From accrual methods, to the protections provided to the time off, to the varying (and ever growing) laws in different jurisdictions, paid sick leave can be spooky.  What about how to calculate the rate of pay for the paid sick leave??  On October 11, 2016, the California Department of Industrial Relations, Division of Labor Standards Enforcement (“DLSE”) issued an opinion letter regarding its interpretation under California’s Healthy Workplace Health Families Act of 2014 (the “California Paid Sick Leave Law”) of the method of calculation of paid sick leave for employees paid by commissions and exempt employees who are given an annual, non-discretionary bonus.

Continue Reading Calculation of California Paid Sick Leave May Spook Employers

On August 25, 2016, the EEOC issued its Enforcement Guidance on Retaliation and Related Issues. In addition to outlining expanded definitions of “opposition” and “participation” activity with respect to retaliation claims, the EEOC also addressed section 503(b) of the ADA.  Section 503(b) makes it unlawful to “coerce, intimidate, threaten or interfere” with an individual who attempts to exercise ADA rights or one who assists or encourages others to do so.

What Makes ADA Interference Different

In its guidance, the EEOC notes the interference provisions of the ADA are broader than the statute’s anti-retaliation provisions. Specifically, actions that may not be materially adverse for a retaliation claim may suffice for an interference action.  Another distinguishing feature of an ADA interference claim, according to the agency, is that an individual pursuing relief need not be a qualified person with a disability. Continue Reading EEOC Explains ADA Interference – Employers Take Note

The EEOC’s 2016 wellness program regulations are once again under fire. On October 24, 2016, AARP filed a complaint against the EEOC in D.C. federal court challenging the EEOC’s rules relating to wellness programs. See AARP v. EEOC  Specifically, AARP seeks a ruling that the 2016 Regulations relating to the Equal Employment Provisions of the Americans with Disabilities Act (the “2016 ADA Rule”) (29 C.F.R. §§ 1630.14(d)(3)) and Title II of the Genetic Information Nondiscrimination Act (the “GINA Rule”) (29 C.F.R. § 1635.8(b)(2)(iii)) are unlawful and request a preliminary injunction that would prevent the rules from taking effect on Jan. 1, 2017.  This suit is the first to specifically challenge the EEOC’s 2016 ADA Rule and GINA Rule.

AARP, which is a nonprofit organization dedicated to addressing the needs and interests of people age fifty and older, is concerned that older workers will be disproportionately affected by these regulations because older workers are more likely to have medical issues that would be disclosed to employers by medical questionnaires and could potentially expose these employee to discrimination by their employer.

Both the ADA and GINA, in an attempt by Congress to prevent such discrimination, generally prohibit an employer from requesting medical information from employees’ and their dependents. Although both statutes have an exception that relates to participation in wellness programs, each law requires that the participation be voluntary, meaning that an employer may not penalize an employee for choosing not to participate.

However, AARP claims that the 2016 ADA and GINA Rules violate the Administrative Procedures Act as well as the ADA and GINA provisions that protect employees from involuntary disclosure of their health and genetic information because the regulations are arbitrary, capricious and an abuse of discretion.  According to AARP, the 2016 rules depart from the protections of the ADA and GINA by permitting employers to penalize employees by up to 30% of the full cost of individual health insurance premiums if they choose to keep their medical information confidential. This “penalty” applies both to the employee and his or her spouse separately.   AARP contends that these regulations are clearly contrary to the ADA and GINA and go against Congress’ clear intent to ensure that employees are not pressured to reveal medical or genetic information.

Furthermore, AARP points out that for years the EEOC defended the same position regarding employers penalizing employees for not providing medical information. See EEOC v. Honeywell, Inc., No. 14-cv-04517.  The EEOC’s position has consistently been that an employee’s participation in a wellness program was only voluntary if employers did not require participation or penalize employees who choose to keep their medical and genetic information private.  However, under the 2016 Rules, the EEOC now asserts that “medical inquiries and examinations in wellness programs are ‘voluntary’ as long as the penalty for refusing them does not exceed 30% of health insurance premiums for self-only coverage.” AARP v. EEOC Complaint at 23.  There is no explanation or justification provided by the EEOC for the 30% figure.  AARP claims that this is further proof that the EEOC’s regulations are arbitrary, capricious and an abuse of discretion because the EEOC did not explain the reversal of “its longtime position that medical inquiries and examinations are only ‘voluntary’ if employees are not penalized for refusing them.” Id. at p. 24.

As these issues continue to heat up, all eyes will be on the EEOC to see how it responds. Stay tuned.

It is common gospel that when a qualified disabled employee requests accommodation under the Americans with Disabilities Act (“ADA”), both employer and employee must engage in an interactive dialogue to discuss the options.  But what happens when an employee merely identifies a disability but never asks to be accommodated?  In a recent decision, a sharply divided Eighth Circuit held that an employer who learns an employee cannot perform essential duties without accommodation due to a medical condition may need to treat the information as an “implicit” accommodation request.  Such an implicit request can trigger the interactive process even though the employee never specifically asked to be accommodated.  The opinion can be found here.  Continue Reading Finding the “Implicit” Accommodation Request