Cook County, Illinois, has become the most recent jurisdiction to mandate that employers provide paid sick leave benefits for eligible employees.  Beginning July 1, 2017, Cook County employers must allow eligible employees to accrue up to 40 hours of paid sick leave per year.  The Cook County “Earned Sick Leave” Ordinance was passed on October 5, 2016, and was intended to supplement the corresponding law passed by the City of Chicago on June 22, 2016.  It is anticipated that more than 400,000 suburban Cook County employees will now be eligible for paid sick leave as a result of the new Cook County Ordinance. 

The requirements of the new Cook County Ordinance closely mirror those of the Chicago Ordinance, with very few differences.  Both new laws allow employees to use paid sick leave for not only their own illness, injuries, or medical care (including preventative care), but also for the illness, injuries, or medical care of certain covered family members.  “Family member” is defined expansively and goes so far as to include individuals who have a “close association” with the employee which is “the equivalent of a family relationship.” 

Unlike any other paid sick leave laws which have been passed throughout the country, both the Cook County and Chicago Ordinances allow certain employees to carry over accrued, unused sick leave that can be used exclusively for FMLA-eligible purposes.  The carryover provisions in both new laws are somewhat ambiguous and we remain hopeful that additional regulatory guidance will be provided to employers before the laws become effective next year.        

To read more about the requirements of the new Chicago and Cook County Ordinances, click here and here. 

 

CaliforniaBeginning January 1, 2017, employers with 50 or more employees who have employees in San Francisco will need to begin providing payments to eligible employees who take time off to bond with a newborn child.  Employers with 35 or more employees become subject to the ordinance on July 1, 2017 and employers with 20 or more employees become subject to the ordinance on January 1, 2018.

The ordinance provides benefits to covered employees.  A covered employee is someone who:  (1) has worked for the covered employer for at least 90 days prior to the start of the leave period; (2) performs at least eight hours of work per week within the geographic boundaries of San Francisco; (3) at least 40% of the total weekly hours worked for the employer are within the geographic boundaries of San Francisco; and (4) is eligible to receive paid family leave compensation from the State of California under the Paid Family Leave law or an EDD approved voluntary plan.   Covered employees are entitled to receive up to 6 weeks of supplemental compensation while on leave.

Employers who have existing plans which provide for salary continuation for employees taking time off for new child bonding may be able to take advantage of an exemption in the ordinance which excludes employers who already provide paid parental leave benefits.  Employers should review their policies now to ensure that existing benefits are sufficient to satisfy the requirements of the exemption and to make necessary updates before the ordinance becomes effective.

The San Francisco Office of Labor Standards Enforcement maintains a site on its web page providing resources for the  Paid Parental Leave Ordinance.

The nation’s highest Court began its new term on Monday, October 3, 2016 by, among other things, declining to review the Eighth Circuit’s ruling that an obese applicant did not have an actual or “regarded as” disability under the Americans with Disabilities Act (“ADA”). The Court’s decision ends a hotly contested battle which saw “friend of the court” briefs filed by the EEOC, the US Chamber of Commerce, AARP, the Equal Employment Advisory Council, and the National Federation of Independent Business Small Business Legal Center.

In 2011, BNSF Railway Co. (“BNSF”) extended a conditional offer of employment for a Machinist position to Melvin A. Morriss III.  The offer of employment was contingent upon a satisfactory medical review.  After Mr. Morriss’ medical review, BNSF rescinded the conditional offer of employment noting that Mr. Morriss was “[n]ot qualified for the safety sensitive Machinist position due to significant health and safety risks associated with Class 3 obesity ([BMI] of 40 or greater).” BNSF’s policy was not to hire applicants for safety-sensitive positions if their BMI equaled or exceeded 40.

Mr. Morriss sued BNSF for disability discrimination claiming his obesity was an actual ADA disability and BNSF regarded him as disabled.  BNSF argued it did not discriminate against Mr. Morriss since “obesity did not meet the definition of a disability under the ADA because it was not a ‘physical impairment.’”  A Nebraska district court granted BNSF summary judgment.

On appeal, the Eighth Circuit affirmed the district court’s decision holding “for obesity, even morbid obesity, to be considered a physical impairment, it must result from an underlying physiological disorder or condition.”  Rejecting the “regarded as” claim, the Court reasoned, “[t]he ADA does not prohibit discrimination based on a perception that a physical characteristic — as opposed to a physical impairment — may eventually lead to a physical impairment as defined under the Act.”  The Eighth Circuit’s decision is available here Morriss v. BNSF Railway Company, Case No. 14-3858 (8th Cir. Apr. 5, 2016).

In his petition seeking the Supreme Court’s review, Mr. Morriss argued that the split in the circuits regarding whether obesity is an ADA covered disability made “resolution of this issue [] of great importance.”  The Supreme Court nevertheless declined to review the case.  The Sixth Circuit and the Second Circuit have both held that obesity (even morbid obesity), must be the result of a physiological condition to constitute a covered disability under the ADA.  See EEOC v. Watkins Motor Lines, Inc., 463 F.3d 436 (6th Cir. 2006); and, Francis v. City of Meriden, 129 F.3d 281 (2d Cir. 1997). However, an Eastern District of Louisiana court held  “a physiological cause for obesity is required only when an ADA disability-discrimination claimant’s weight is within the normal range.”  EEOC v. Res. For Human Dev., Inc., 827 F.Supp. 2d 688 (E.D.La. 2011).

CaliforniaThe DOL’s final rule on paid sick leave was not the only news-making event in the world of leave management last Friday.  While additional time off was being lauded by the federal government, additional protected leave was rejected in California. 

On Friday September 30, 2016, California’s Governor Brown vetoed SB 654 (Jackson), the New Parent Leave Act.  The Senate Bill would have created a new protected leave of absence for employers with 20 or more employees within a 75-mile radius in California.   The vetoed bill would have added an additional 6 weeks of “parental leave” to bond with a new child within one year of the child’s birth, adoption, or foster care placement leave, thus creating a potential total of over 5 months of protected leave for certain California employees.  The bill also would have prohibited employers from refusing to maintain and pay for coverage under a group health plan for an employee who takes the additional parental leave. Continue Reading California Governor Vetoes Parental Leave Bill Which Would Have Expanded Such Leave to Small Employers

On the eve of the end of its fiscal year, the U.S. Department of Labor has announced final rules implementing Executive Order 13706 requiring that covered federal contractors provide paid sick leave for covered employees.

Scheduled for official publication tomorrow in the federal register, the rules require federal contractors to provide at least 1 hour of paid sick leave for every 30 hours of work on, or in connection with, certain federal contracts, for a total of 56 hours per year.

Not unexpectedly, the rule does nothing to try to synchronize the expanding patchwork of paid sick leave laws sprouting across the country.  Instead, it reminds employers that, to the extent they differ, the more generous provisions apply.

To read more about this latest development click here.

In a much anticipated decision, a Wisconsin federal district court has granted Orion Energy Systems, Inc.’s summary judgment on the EEOC’s challenge to its wellness program design. See Sept 19, 2016 Decision and Order. While largely good news for Orion, the ruling creates even more confusion for employers seeking clarity on wellness program design principles.  In short, the Court: 1) rejected the EEOC’s claim that the wellness program violated the ADA because it was “involuntary;” 2) upheld the EEOC’s position that the ADA’s “safe harbor” for insurance could not be used to defend the wellness program design; and 3) held there was a triable issue on whether the employer’s termination of an employee who refused to participate in the wellness program was unlawful retaliation under the ADA. The case lives on due to the retaliation claim but many employers are scratching their heads on what the ADA requires for wellness programs going forward.

The EEOC’s complaint alleged that Orion required employees to complete a health risk assessment, as part of the wellness program, or pay 100 percent of their health insurance premiums and retaliated against an employee who declined to participate in the screenings. Orion claimed its wellness program was protected by the ADA’s “safe harbor” provision satisfied the ADA requirements of “voluntariness” under 42 U.S.C. §12112(d)(4)(B).

In analyzing whether the ADA’s “safe harbor” provision applies to Orion’s wellness program, the Court applied retroactively the EEOC’s new ADA wellness regulation, which specifically states that the “safe harbor” provision does not apply to wellness programs. This ruling should concern employers who have relied on the ADA’s “safe harbor” provision in designing wellness programs.

However, in a surprising move, the Court concluded, contrary to the EEOC’s position, that the medical inquiries that triggered potential ADA’s protection – the requirement that employees complete a health risk appraisal – were voluntary. Although the Court briefly mentions the 30 percent cap on financial incentives found in the EEOC’s new ADA wellness regulations, because the EEOC did not argue that the cap applied retroactively, the Court did not consider its effect on Orion’s wellness program.  Instead, the Court focused on a question the EEOC likely thought was a “slam dunk” – whether requiring employees who chose not to answer the HRA to pay 100 percent of their health premiums rendered the medical inquiries “involuntary.”  The Court found that the wellness design was “voluntary” because, while the options of either participating in the screening or pay 100 percent of premiums could be considered a hard choice, it was still a choice and the employee had the option of deciding whether or not to participate in the wellness program without the risk of losing participation in the group health insurance plan.  As a result of the determination that participation was optional, the Court held that Orion conducted voluntary medical examinations as part of its wellness program pursuant to 42 U.S.C. § 12112(d)(4)(B).

This ruling renders a completely different result than the decision of the Western District of Wisconsin in EEOC v. Flambeau, Inc. Only time will tell whether the Court’s ruling is followed by other federal courts. Stay tuned!

We have been reporting on the growing patchwork of paid sick leave laws now for over 3 years.  The patchwork continues to fill in heavily on the west coast with state laws in both California and Oregon and 10 city ordinances scattered across California, Oregon and Washington.  This summer Los Angeles and San Diego added their own patches to the quilt.  To read more about these new laws, click here  and here. 

The east coast also contributes heavily to the patchwork, with state laws in Massachusetts, Connecticut, and Vermont,  a plethora of city laws scattered throughout New Jersey, and a handful of other city or county laws in New York, D.C., Maryland, and Pennsylvania.  Puerto Rico rounds out the east coast.    This summer, Minneapolis, Minnesota became the first to stretch the thread away from the coastal states.  To read more about Minneapolis’ law, click here.  It’s law, which takes effect July 1, 2017 opened the door for other interior states and locations to add their own patches.  Chicago quickly joined.  To read more about Chicago’s law, click here.  And this week the city council for St. Paul, Minnesota  unanimously passed its own sick leave ordinance.  Like Minneapolis, it goes into effect on July 1, 2017.  The St. Paul ordinance requires employers to allot employees an hour of earned sick leave for every 30 hours worked.   Unlike the Minneapolis law, St. Paul’s ordinance does not exempt companies with fewer than six employees.

It would be nice if the patches all matched, but each local law has its own definition of who is covered, what it can be used for, and how much must be provided, leaving a mis-matched (and sometimes clashing) pattern of stripes, solids and checks across the nation.    New Jersey is a shining example of this where there are at least 12 city ordinances, but the state legislature has stalled passing a consistent state law.

While employers may cringe at the idea of having to pay employees not to work, the administrative cost of adjusting to each local ordinance and tracking the various accrual rates is often times outweighing the cost of the leave itself.  Indeed, the objection to many of these laws is not so much the paid time off (as many employers already provide some form of paid time off), but the administrative cost associated with complying and the lack of any meaningful control on employee abuse.  As the patchwork continues (and appears to be picking up momentum), employers should make their voices heard at the local, state and national level. A number of states have passed kibosh laws that prohibit municipalities from passing these laws.  Stay tuned, if it is not already on the ballot, it is likely coming to a ballot near you soon.

On August 29, 2016, the California Court of Appeal for the Second Appellate District reversed summary judgment earlier awarded to the employer in Castro-Ramirez v. Dependable Highway Express, Inc. In its reversal, the court found that an employer’s denial of accommodation to a nondisabled employee may be evidence of associational disability discrimination under the Fair Employment and Housing Act (“FEHA”).

The Facts

Plaintiff Luis Castro-Ramirez (“Plaintiff”) began working for Dependable Highway Express (“DHE”) in 2010. At that time, Plaintiff notified DHE that he had a disabled son who required dialysis on a daily basis.  He requested work schedule accommodations that allowed him to administer dialysis to his son in the evenings and was given such a schedule.  Plaintiff’s typical schedule was from 9:00 or 10:00 a.m. until 7:00 or 8:00 p.m.

In March 2013, Plaintiff’s supervisor was promoted to operations manager, and his new supervisor, Boldomero Munoz-Guillen (“Junior”) changed Plaintiff’s work schedule. That same month, Plaintiff complained to the operations manager that Junior had changed his hours, such that he was unable to attend to his son’s daily dialysis needs.

Plaintiff told Junior, “Please, I need to have my job like always. I’ve always had help from everyone except you.”  The next day, Junior assigned Plaintiff to a shift starting at 12:00 p.m., and due to the route Plaintiff’s supervisor assigned to him, he could not get back in time to administer dialysis by 8:00 p.m.  Plaintiff requested the day off or an alternative shift, and reminded Junior that the operations manager had told Junior about Plaintiff’s needs.  Junior laughed, “[Plaintiff’s former supervisor] doesn’t work here anymore.  Now it’s me.” Junior told Plaintiff that if Plaintiff did not handle the route, he would be terminated.  Plaintiff refused, and DHE terminated Plaintiff’s employment.

The Decision

The Court of Appeal noted that Plaintiff had abandoned his claim for failure to provide reasonable accommodation, and thus, declined to decide whether FEHA provided a duty to accommodate associational disability. However, the Court of Appeal explained that the FEHA creates an associational disability discrimination claim.  The Court of Appeal opined that FEHA makes it unlawful to discharge a person from employment based on physical disabilities or other characteristics, which include “a perception that the person. . .is associated with a person who has, or is perceived to have, any of those characteristics.”  Cal. Gov. Code § 12940(a), § 12940(o).

Based on that framework, the Court of Appeal opined that a jury could reasonably find that Plaintiff’s association with his disabled son was a substantial motivating factor in Junior’s decision both to deny an alternative work schedule and to terminate Plaintiff. “[T]hese facts may give rise to the inference that Junior acted proactively to avoid the nuisance plaintiff’s association with his disabled son would cause Junior in the future.”

The Court of Appeal also held that reasonable juror could find Plaintiff’s repeated complaints about the sudden changes to his schedule represented a protected activity, especially given the proximity of time between Plaintiff’s complaints and the termination. The Court of Appeal found Plaintiff did more than simply request an accommodation; he expressed a degree of opposition to the DHE’s failure to provide the altered schedule and thus there is a triable issue of fact as to retaliation.

The Dissent

The Court of Appeal’s dissenting opinion disagreed with the majority’s statement that it declined to decide whether FEHA establishes a separate duty to reasonably accommodate associational disabilities. Rather, the dissent believes the majority did just that.  Effectively, the employer either must provide accommodations to employees associated with disabled persons, or face liability for associational discrimination for failure to provide such accommodations.

***

The Castro-Ramirez v. Dependable Highway Express ruling finds that an employer could be liable for discrimination and retaliation for adverse employment actions substantially based on associational disabilities.  The decision also asserts that employer denial of accommodation requests by employees associated with disabled persons may be evidence of an associational disability claim.  Accordingly, employers should review their policies and practices regarding responding to disability accommodation requests in light of this decision.  Please contact Jackson Lewis with any legal questions about disability accommodation related issues.

With today’s publication of the final guidance and regulations implementing the “Fair Pay and Safe Workplaces” Executive Order (also known as the “Blacklisting” or “Bad Actors” Executive Order), mistakes that violate the FMLA or ADA (along with many other employment laws) could block an employer from lucrative federal contracts or subcontracts.  Federal contractors and those hoping to become federal contractors or subcontractors will soon have to publicly disclose administrative agency decisions, arbitral awards and civil judgments against them.  Violations will now cost more than just the original judgment – they could prevent the employer from obtaining or retaining  a federal contract or subcontract.

As with most things, an ounce of prevention is worth a pound of cure.  Employers are wise to develop practical and effective accommodation and leave management programs to help avoid the issues lurking under every medical restriction or leave request.  Even more important is to develop well-trained managers and HR professionals who are adept at handling the many intricacies of these laws and know when to get outside help before a little issue turns into a reportable violation.

The effective date of the regulations is just two months away, October 25, 2016.  To read more about the regulations, click here.

The loss of a child is never easy.  Effective July 29, 2016, Illinois employers with 50 or more employees must provide eligible employees with up to 10 days of unpaid child bereavement leave following the death of a child.  The Illinois Child Bereavement Leave Act supplements the leave options available under the federal Family and Medical Leave Act of 1993 (“FMLA”).  However, employees who have exhausted all available leave under the FMLA may not be entitled to additional leave under the Child Bereavement Leave Act.  Further details regarding the Act can be found at the link below.

http://www.jacksonlewis.com/publication/illinois-law-mandates-unpaid-child-bereavement-leave