4th Quarter Compliance Review Webinar - ReedGroup

4th Quarter Compliance Review Webinar

December 12, 2019

Our Speakers

Sue Woods

Senior Compliance Counsel, Absence and Accommodation Compliance

303.464.2445

[email protected]

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Ashlee Brennan

Senior Compliance Counsel, Absence and Accommodation Compliance

303.464.2445

[email protected]

James Venable

Vice President of Employment Law, Absence and Accommodation Compliance

720.440.6984

[email protected]

Not Legal Advice

This presentation is designed to provide accurate information in regard to

the subject matter covered. It is provided with the understanding that

ReedGroup is not engaged in rendering legal or other professional

services. If legal advice or other expert assistance is required, the

services of a competent attorney or other professional person should be

sought. Due to the numerous factual issues which arise in any human

resource, leave of absence, or employment question, each specific matter

should be discussed with your attorney.

Legal Disclaimer

• Legislative Update

• Case Law

• Agency Action – EEOC and DOL

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Legislative Updates

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Maryland Organ and Bone Marrow Donation Leave

• Effective 10/1/19• Applies to employers with 15 or more employees in MD• Eligible employees:

o 12 months

o 1,250 hours worked in previous 12-month period from date leave is to begin

• Entitlement:o Bone marrow: up to 30 business days

o Organ: up to 60 business days

• Leave may be unpaid, but is job protected• Does NOT run concurrently with FMLA• Employee must provide written verification from

physician stating that the employee is a donor and there is a medical necessity for the donation

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MD House Bill 1284

California Living Organ Donation Amendment

• Effective 1/1/20

• Applies to employers with 15 or more employees

• Adds 30 business days of unpaid leave to existing 30 days of paid leave for organ donation

• One-year period is measured from the date leave begins

• Job-protected leave

• The additional 30 days may NOT run concurrently with FMLA or CFRA

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CA Assembly Bill 1223

New York Domestic Violence Accommodation law

• Effective 11/18/19

• Must provide reasonable accommodations, including time off, to victims of domestic violence in order to:

o Seek medical attention for injurieso Obtain services from a domestic violence shelter, program, or rape crisis centero Obtain psychological counselingo Participate in safety planning and take actions to increase safety, including relocationo Obtain legal services, appear in court, and assist prosecution of offenses

• Employees must provide advance notice, if feasible

o If not feasible, employer may require certification to support the need for leave

• Employer may require use of paid time off under company policies – otherwise, time off is unpaid

• Must continue health insurance coverage to which employee is otherwise entitled

• Undue hardship defense may apply

• May run concurrently with other applicable laws (e.g., FMLA, NY PFL, etc.)

• Prohibits discrimination based on victim status

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NY Senate Bill 1040

Puerto Rico Domestic Violence law

• Effective 8/1/19

• Provides up to 15 days of unpaid leave each calendar year to address issues related to domestic or gender-based violence

• Applies when the victim is a family member (children, spouse, partners, parents, and persons over which the employee has custody or guardianship)

• Job-protected leave

• Employees must provide two business days’ notice, unless circumstances do not permit it – notice may come from a family member, therapist, shelter director, attorney, or other professional assisting the employee

• Employees may also request reasonable workplace accommodations, such as flexible work times, change of work location, etc.

• Employers may request supporting documentation

• Leave may be taken intermittently or on a reduced schedule basis

• This time off is in addition to any other leave to which the employee may be entitled

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Act 83

Maine Pregnancy Accommodation Amendment

• Effective 9/19/19

• The amendment does not significantly change the existing protections under Maine law (5 M.R.S.A. § 4572-A)

• Existing law requires employers to treat pregnancy-related conditions in the same manner as other disabilities or illnesses and prohibits employers from treating pregnant workers who are able to work differently from other workers

• Broadened protections require reasonable accommodations for pregnancy-related conditions, absent an undue hardship, including

o More frequent or longer breakso Temporary changes to work scheduleso Seating or equipmento Temporary relief from lifting requirementso Temporary transfer to less strenuous or hazardous worko Lactation provisions

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ME L.D. 666

Illinois School Visitation Rights Act Amendment

• Effective 8/1/20

• Leave reasons now include attending behavioral meetings and academic meetings but deletes “classroom activities”

• Now prohibits termination of an employee for an absence if the absence is due solely to the employee’s attendance at a school conference, behavioral meeting, or academic meeting

• Entitlement remains the same – 8 hours during any school year and no more than 4 hours on any given day, if school meetings cannot be scheduled during nonwork hours

• Still unpaid leave, and may only be used when employee has exhausted all other accrued leave (except sick and disability leave)

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IL House Bill 2830

California Family Rights Act Amendment – Flight Crew Eligibility

• Effective 1/1/20

• Adopts FMLA eligibility requirements for airline crews

o Work or been paid for a minimum of 504 hours during the 12 months prior to leave, and

o Worked or been paid for 60% of the applicable total monthly guarantee (or the equivalent annualized over the preceding 12-month period)

• Crew members still must have been employed by their air carrier for 12 or more months

• Department of Fair Employment and Housing to adopt regulations to calculate CFRA leave for flight crew members

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CA Assembly Bill 1748

Washington State Paid Family and Medical Leave

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Benefits begin January 1, 2020

Washington State Paid Family and Medical Leave

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Notifications

• Employers must:

o post a mandatory poster – to be provided by state before 1/1/20

o Provide notice to employees who have missed 7 consecutive days for reasons that could be covered by WA PFML

• Employees must provide 30 days advance notice, when possible; otherwise they must give notice as soon as practical

• ESD will provide employer with notice that an employee has filed a claim for benefits

• When state makes determination, it will provide employers notice of:

o Claim year start and end dateo Total hours of leave available to employeeo Maximum number of hours available per weeko Weekly benefit amounto Qualifying period used to make this determination

Washington State Paid Family and Medical Leave

• Benefits available starting 1/1/20:o Up to 12 weeks of PFML (with additional 2 weeks for pregnancy incapacity)o Up to 16 weeks total, if employee faces multiple events in claim year (18 weeks if pregnancy

incapacity)o Maximum weekly benefit in 2020 is $1,000

• Must continue health insurance while employee on leave

• Employees may be able to stack leaves – FMLA, company-provided leaves, etc.; employers may not require employees to use other leave before using WA PFML

• Employers may allow (but may not require) employees to use supplemental benefits to “top up” WA PFML benefits to get full wage replacement

• Although job protection only applies to employees who: (i) work for an employer with 50 or more employees; (ii) have been employed by the current employer for 12 months or more; and (iii) has worked for the current employer for at least 1,250 hours during preceding 12 months, WA PFML prohibits an employer from interfering with, restraining, or denying an employee’s rights under the law

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Reminders

District of Columbia Paid Family and Medical Leave (PFML)

Begin 7/1/20

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Benefits

District of Columbia

By 1/1/20:

• Post physical workplace poster

• Annual notice to all workers (paper or electronic)

• To new hires (within 30 days of hiring)(paper or electronic)

• At the time PFML is needed (paper or electronic)

Company-provided benefits:

• Employers may not restrict employees’ right to access benefits under the D.C. PFML program

• However, employers may create or modify their plans to require that employees take their company-provided leave/benefits concurrently with D.C. PFML leave

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Notice Requirements and Concurrent Benefits

Massachusetts Paid Family and Medical Leave

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Timeline

Source: Mass.gov Dep’t of FML website

Connecticut Paid Family and Medical Leave

1/1/21

Contributions begin

1/1/22

Benefits begin;

CT unpaid family leave repealed and amended

7/1/22

Employers must provide written notice to employees – time of hire and annually

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Key dates

Oregon PFML Timeline

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September 1, 2021Regulatory Rules Expected

January 1, 2022Payroll Deductions Begin

January 1, 2023Benefits Payable

• 9th state/district to pass PFML legislation

• First state to provide 100% income replacement to low wage earners (trend toward richer benefits)

• Eligibility assessment is more of a “home base” analysis than strictly where your work is performed

Other Facts

Case Law

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Americans with Disabilities Act

Robson v. Shaws Supermarkets, Inc.

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Case No. 1:18-CV-00055-lew (U.S. District Court, ME, SEPT 6, 2019)

Request for more than 6 Months of leave is not a reasonable accommodation

Even though an employee’s request may appear to be “facially unreasonable.” the employer must still look at the facts of each case to carefully assess what

accommodations could apply before taking adverse action against the employee.

Hamilton v. GlaxoSmithKline, LLC.

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Case No. CV 18-54-m-dlc (U.S. DISTRICT COURT, d. mt. OCT 23, 2019)

Employee’s request for a new supervisor is not a reasonable accommodation, nor was there a violation of the ADA’s prohibition against medical examinations

Even requests for accommodations that appear to be wholly unreasonable on their face require the employer to approach each situation on a case by case basis. Make no assumptions, always engage in a complete interactive process before taking adverse action against the employee.

Case Law

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FMLA

Cross v. Dental Assisting Academy of Louisville, LLC

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Case no. 3:18-CV-767-chb (U.S. District Ct W.D. Kentucky Sept 30, 2019)

Is an employee who is fired before meeting the 12-month work requirement still protected by the FMLA?

The determination of whether an employee meets the eligibility requirements is made on the date the employee commences their leave.

Valdivia v. Township High School District

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Case No. 19-1410 (7th Circuit U.S. Court of Appeals Nov. 12, 2019)

Is an employer liable under the FMLA for failing to provide an employee with notice or information about their right to take job protected leave?

If an employer has constructive notice of an employee’s need for a leave based on observations of the employee’s behavior, the employer must provide the employee with information about their right to take job protected leave.

Case Law

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USERRA

Cain v. Exxon Mobil Corporation.

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Case No. 17-1567 400 F.Supp.3d 514, (2019)

Military service is not the sole factor to consider in determining whether an employer violated USERRA

Adverse employment actions against members of the military require the employer to show they would have made the same decision without regard to the employee’s military status.

Scanlan v. American Airlines Group, Inc.

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Case No. 18-4040 400 384 F.supp.3d 520 (2019)

Pilots on short term military leave filed USERRA claim alleging they were not paid similarly to non-military employees who were out on comparable leaves

Avoid leave policies that treat similarly situated employees differently based on their status.

Agency Actions

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EEOC v. Crossmark

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Civil Action No. 3:18-cv-1760, U.S. District Court for the Southern District of Illinois

$2.65 Million settlement of ADA lawsuit.

Employer must be able to show that extending an already existing practice is an undue hardship if other employees are already being provided with similar accommodation.

EEOC v. Big Lots Stores

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Case No. 2:17-CV-00073) U.S. District Court for the Northern District of West Virginia (Elkins).

$100,000 settlement for EEOC disability claim.

Train managers to investigate and take immediate action whenever an employee alleges that they are being subjected to harassment by co-workers.

EEOC v. Transport America

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Case No. 0:19-cv-02300, U.S. District Court for the District of Minnesota

$22,500 settlement for ADA Claim.

Never require an employee to pay a fee for their own ADA accommodation!

DOL Opinion Letters

• On 8/8/19, the U.S. Department of Labor (DOL) issued an opinion letter stating that attending an individualized education program (IEP) meeting related to an employee’s child falls within the FMLA qualify reason of care of a family member with a serious health condition

• DOL indicated that its opinion applies to any meetings held pursuant to the Individuals with Disabilities Education Act (IDEA), which requires public schools to develop an IEP for children who receive special education services

• Employee still required to meet FMLA requirements, such as medical certification of child’s serious health condition and employee’s need to provide care

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FMLA: Individualized Education Program Meetings

DOL Opinion Letters

• On 9/10/19, the DOL clarified its position that paid leave provided in a collective bargaining agreement (CBA) must run concurrently with the 12 weeks of FMLA for employees who are FMLA-eligible and use leave for an FMLA-qualifying reason

• Therefore, employers should not delay designation of FMLA leave, even if the CBA provides that company/CBA-provided leave must be exhausted prior to FMLA leave

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Designating FMLA: CBA does not override designation

Additional Resources

https://www.reedgroup.com/resources/

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Our Bios

Sue Woods, Senior Compliance Counsel

Sue Woods, Esq. is Senior Compliance Counsel at ReedGroup where she focuses on product and operational compliance in leave and absence management solutions. Sue brings years of experience practicing labor and employment law, including advising employers on the intricacies of the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), Title VII, and state and local leave laws. By writing timely articles and speaking at seminars and events, Sue strives to break down tricky leave compliance issues into actionable, practical employment solutions.

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Ashlee Brennan, Senior Compliance Counsel

Ashlee Brennan, Esq., Senior Compliance Counsel has a strong background in leave of absence management compliance, conflict resolution, and cross-departmental problem solving. She has worked for several non-profit organizations assisting individuals with disabilities in a variety of roles prior to joining ReedGroup. Her work in the industry has specialized in statutory disability and paid family leave compliance while also providing solutions for FMLA, ADA, and ERISA concerns. Ms. Brennan graduated from Michigan State University College of Law in 2015, and is admitted to the Colorado Bar.

James Venable, JD, SPHR

James Venable provides expertise in the areas of absence management compliance and employee relations counseling. Mr. Venable has more than 20 years of experience across senior roles in Legal, Human Resources, and Compliance from several Fortune 500 companies. Mr. Venable joined ReedGroup in April 2018 after serving as Vice President of Human Resources, Employee Relations, Labor Relations, Compliance and Environmental Health and Safety for Comcast, where he was responsible for engagement and labor relations activities for the company’s West Division Business Unit.

Thank you.