FMLA Leave or ADA Accommodation (Or Both)? Overview of Beyond the Basics

After more than 20 years under the ADA and FMLA, and 18 years since the passage of the Oregon Family Leave Act (“OFLA”), most employers are familiar with the basics of these laws. Many employee leave situations can be handled in a basic and straightforward manner. Unfortunately, others involve an obscure application of a particular law, or the thorny challenges presented by the interplay of all three laws. (Unlike FMLA and OFLA, the ADA was not specifically enacted for the purpose of providing leave per se. In fact, EEOC Commissioner Chai Feldblum has referred to the ADA as “an inadvertent leave law.”) 

This post gives an overview of specific practical tips to address some of the stickier leave situations that can arise.  (Shameless self-promotional plug:  these and other topics were covered in depth at a Stoel Rives Breakfast Briefing Seminar.  For details on other Stoel Rives seminars and breakfast briefings, click here.)

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U.S. Supreme Court's Decisions on DOMA Extend FMLA Definition of "Spouse" To Same-Sex Partners In States Recognizing Gay Marriage

As almost everyone knows, the U.S. Supreme Court  issued two blockbuster decisions on gay marriage, U.S. v. Windsor, which struck down the Defense of Marriage Act's ("DOMA") definition of marriage for the purposes of federal law, and Hollingsworth v. Perry, which struck down California's "Proposition 8" prohibiting same-sex marriage in that state.  Those decisions will likely have significant effects on employers, such as with respect to employee benefits, health care and tax issues related to employees with same-sex partners.  For example,read here for a detailed discussion of how the Supreme Court's decisions may impact employee benefits.

Those decisions, particularly Windsor, also will have an immediate impact on employee coverage under the federal Family Medical Leave Act ("FMLA"), which requires covered employers to provide up to 12 weeks per year of unpaid leave to eligible employees for qualifying reasons (more leave may be required in certain situations, such as leave related to military duty).  One such qualifying reason entitles an employee to take leave to care for a family member, such as a family member with a serious health condition.  FMLA specifically defines family members to include a "spouse," which is further defined to mean a "husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized."  29 CFR 825.122.  Despite the fact that states have begun recognizing same-sex marriage in recent years, because the DOMA specifically defined marriage as only between a man and woman for the purposes of federal law, the DOMA basically overrode those states' laws for the purposes of FMLA coverage to spouses.

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Now in Effect: New FMLA Poster and I-9 Form!

As a friendly reminder, employers must update two key employment forms this month.  As of March 8th, employers must begin using the most recent FMLA poster issued by the Department of Labor.  The updated poster reflects the DOL’s final rule concerning military related leave available under FMLA.  The DOL has also issued new FMLA forms to reflect these changes.  Also as of March 8th, employers must begin using the new I-9 Form issued by the U.S. Department of Homeland Security, Department of U.S. Citizenship and Immigration Services.  Unlike other recent versions of the form, this form has a three year shelf life as it will not expire until March 2016.  New instructions for the I-9 form have also been published to help guide employers.   

The new FMLA poster can be downloaded here:

http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf or http://www.dol.gov/whd/regs/compliance/posters/fmla.htm

Info & links to the updated FMLA forms are found here: http://www.dol.gov/whd/fmla/index.htm, http://www.dol.gov/whd/fmla/2013rule/, and http://www.dol.gov/whd/fmla/2013rule/militaryDate.htm

 

The new I-9 Form and instructions can be downloaded here:

http://www.uscis.gov/files/form/i-9.pdf

 

If you have any questions regarding the new forms or the changes to the FMLA, feel free to contact any member of the Stoel Rives LLP Labor and Employment Group.

Recordkeeping: The Often Overlooked Element of FMLA Compliance

Most employers grapple with the better-known aspects of the Family and Medical Leave Act (FMLA), such as determining whether an employee’s illness constitutes a serious medical condition, obtaining required certification or providing adequate coverage for workers on intermittent leave. All too often employers focus on the leave itself and breathe a sigh of relief when notice is provided confirming the dates of leave or when the employee has resumed his or her usual schedule. But an employer’s compliance with federal law includes the obligation to maintain adequate records related to the leave. Failure to do so can have significant consequences.

What Records Must You Keep?

FMLA recordkeeping requirements can be found in a single regulation, 29 C.F.R. § 825.500. That regulation requires employers to keep and preserve records in accordance with the recordkeeping requirements of the Fair Labor Standards Act (FLSA).  Records must be retained for no less than three years. Although no particular order or form is required, the records must be capable of being reviewed or copied. 

Covered employers with eligible employees must also maintain records that include basic payroll and data identifying the employee’s compensation. Failure to maintain accurate records can have significant consequences for employers, who have the burden of establishing eligibility for leave. Accuracy is important:  for example, the regulations demand that records document hours of leave taken in cases of leave in increments less than a full day.  Lack of suitable records documenting when leave was taken can also doom an employer’s defense to claims for leave. Special rules apply to joint employment and to employees who are not covered by or are exempt from the FLSA.

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City of Seattle's New Paid Sick and Safe Time Law To Take Effect in September 2012

 

As most Seattle employers know by now and as we blogged about earlier, beginning September 1, 2012, the City of Seattle will require that all but the smallest employers provide paid sick leave to their Seattle employees. Seattle Paid Sick and Safe Time (PSST) mandates that most employers provide paid leave, which increases depending on the size of a company’s workforce. Once employees have worked 180 days or more, they must be allowed to use PSST for their own or their family members’ illnesses, as well as for certain safety-related reasons.

We are getting many questions from employers about this new leave mandate. This update will provide answers to some common questions. 

Remember that you need to notify Seattle employees of their PSST rights by September 1.  We are here to assist you in administering this new leave.  Below are a few common questions that may come up.

Q:        What general notice do we have to provide our employees?

A:        Regularly Work in Seattle.  As of September 1, 2012 or soon thereafter, current Seattle employees (of employers of any size) should receive notice of their PSST rights, and new employees should receive such notice at the time of hire. This can be accomplished in several ways:

  1. A poster displayed conspicuously and accessibly in your usual posting place,
  2. A notice to employees provided in employee handbooks or similar employee guidance, and/or
  3.  A notice to employees handed out to each new employee upon hiring. 

The notice can be given either electronically or on paper. The City of Seattle’s model notice and poster (in a number of languages) are available online (scroll down to “Resources” box in right column). 

            Occasional Seattle Employees. If your only Seattle employees are those who work in Seattle occasionally and not on a regular schedule, you do not have to provide notice to all employees, provided that notice is given to occasional-basis employees reasonably in advance of their first period of work in Seattle.

Q:        What notice do we have to provide our employees regarding their PSST accruals?

A:        Each time wages are paid, employees who are accruing PSST (even those who have not worked 180 days yet) must be given information (either on paper or in electronic format) about the amount of PSST they have available. 

Q:       What categories of employees are covered by the law, and what leave must these employees be given? 

A:        Regularly Work in Seattle. These are employees (regular part-time or full-time, and temporary) who regularly work at least 240 hours per year in Seattle, either at your workplace, by teleworking from a Seattle location or by traveling from another location to regularly work in Seattle. These employees begin to accrue leave on September 1, 2012, and can take it as soon as they have worked 180 days or more (even if those 180 days occurred before September 1, 2012). Leave is only required to be provided during times the employee is working in Seattle.

            Occasionally Work in Seattle. These are employees (regular part-time or full-time, and temporary) who occasionally work in Seattle, not on a schedule. These employees begin to accrue leave for every hour they work in Seattle after the 240th hour in a calendar year, and can take leave on their 181st day of employment (even if some or all of those 180 days occurred before September 1, 2012). You can begin to count these employees’ Seattle hours as of September 1. You can delegate to employees the duty to track “Seattle hours” as long as you notify them of this and provide a reasonable way for them to track hours. Once an occasional employee is covered, he or she is covered for that calendar year and the following calendar year. Leave is only required to be provided during times the employee is working in Seattle.

            In order to determine accruals, you must determine your Tier Size. See our past post for further information on Tier Size and accrual amounts. 

Q:        How do we figure out what rate of pay employees earn during leave? 

A:        Generally.  Employees earn the rate of pay they would have earned during the time PSST is taken—but only for hours they were scheduled to work. Employees need not be paid for lost tips or commissions, but must receive at least Washington’s current minimum wage ($9.04 in 2012). 

Nonexempts. Employees who would have been paid overtime during their PSST hours need only be paid their regular hourly rate of pay. 

Exempts. Employees receive an hourly rate of pay by dividing the annual salary by the number of weeks worked per year, to get the weekly salary, and dividing the weekly salary by the number of hours of the employee’s normal work week.

Q:        How do we coordinate PSST with other leave, including paid leave such as Short-Term Disability and other Income Replacement Policies? 

A:        PSST may run concurrently with other leave (such as FMLA) where both apply, and can be provided as a part of paid leave policies (such as vacation, sick and PTO) if those policies meet the eligibility, use, accrual and carryover requirements of PSST. Determining how you will do this and how to amend your policies must be done on a case-by-case basis. The language of your short-term disability leave arrangement, whether provided via insurance, policy or a plan, also requires a case-by-case review. 

Please contact Keelin Curran or your Stoel Rives attorney with your questions regarding coordination of PSST with other leave benefits.

 

Are Remedies Available to Working Moms Who Experience "Lactation Discrimination"?

For many new moms returning to work after the birth of a child, pumping breast-milk is considered to be a necessary evil.  Necessary because pumping ensures that these mothers’ babies can continue to experience the many benefits of breast-milk, and helps the mothers to maintain their milk supplies, relieves painful engorgement, and prevents potentially serious medical conditions like mastitis.  Evil because, well, it is not exactly fun to do, especially if the workplace is not supportive.  The U.S. Centers for Disease Control reports that full-time work for new mothers is “significantly associated with lower rates of breastfeeding initiation and shorter duration,” due primarily to workplace barriers such as “a lack of flexibility for milk expression in the work schedule, lack of accommodations to pump or store breast-milk, concerns about support from employers and colleagues, and real or perceived low milk supply.”  Click here to view CDC's report.

One mother recently faced with this predicament is Donnicia Venters, who alleged in a federal lawsuit that her employer fired her while she was on maternity leave when she inquired about using a back room in the office to pump milk upon her return from leave.  The EEOC brought suit on Ms. Venters’ behalf in the United States District Court for the Southern District of Texas, asserting sex discrimination claims against the employer under Title VII.  See EEOC v. Houston Funding II, Ltd., Case No. 4:11-cv-02442 (S.D. Tex.).  Title VII makes it “an unlawful employment practice for an employer . . . to discharge any individual . . . because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1).  The Pregnancy Discrimination Act amended Title VII to state that “‘because of sex’ … include[s] … because of … pregnancy, childbirth, or related medical conditions ….” 42 U.S.C. §2000e(k).

United States District Judge Lynn N. Hughes (who is a male, for the record) recently granted summary judgment in favor of the employer, ruling that “[f]iring someone because of lactation or breast-pumping is not sex discrimination.”  In a rather conclusory fashion, the court reasoned that “lactation is not pregnancy, childbirth, or a related medical condition” and that any “pregnancy-related conditions” experienced by Ms. Venters ended on the day she gave birth to her daughter.  To see the full opinion click here.

In the few short days since it has been issued, this ruling has garnered much critical attention.  As many commentators have pointed out—and this seems quite obvious—only women can lactate, and lactation does not usually happen in the absence of childbirth.  The ruling therefore strikes many as illogical—how can firing someone for lactation or breast-pumping not be because of sex or a childbirth-related medical condition?  The EEOC has stated that it is considering whether to appeal the ruling.  The issue therefore remains far from settled. It remains to be seen whether the appellate court, or other judges who might be faced with this issue, will come to a different conclusion than Judge Hughes did.

Pumping mothers also have a new legal protection that Ms. Venters did not have when she gave birth to her baby in 2008.  Effective March 23, 2010, the Patient Protection and Affordable Care Act (also known as the Healthcare Reform Act) amended the Fair Labor Standards Act (FLSA) to require employers to provide a nursing mother break time to pump.  Specifically, covered employers must provide reasonable break time for an employee to express breast-milk for her nursing child for one year after the child’s birth, each time the employee has need to express milk.  See 29 U.S.C. § 207(r).  Employers must also provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast-milk.  Id.

There are, of course, several limitations to this protection.  The FLSA amendment does not require employers to pay employees for such break time.  Id.  The requirements also do not apply to employers with less than 50 employees, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.  Id.

Under this amendment, nursing mothers who experience “lactation discrimination” in the workplace might now have a remedy—albeit a limited one—under the FLSA.  The FLSA makes it illegal for an employer to “discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the FLSA].”  29 U.S.C. § 215.  In most jurisdictions, this provision applies to any employee who complains about an FLSA violation, either formally to an administrative agency, or informally to the employer.  A nursing mother who complains about her employer’s failure to provide reasonable break time for her to pump would therefore be protected by this anti-retaliation provision in the FLSA.  As the language of this anti-retaliation provision makes clear, however, the employee must actually complain to the employer in order to be protected.  Thus, if Judge Hughes’ opinion turns out to be the prevailing view and lactation is not protected under the Pregnancy Discrimination Act or Title VII, there is still a gap in protection, even with the FLSA amendment.  Nursing mothers who are simply fired for pumping at work before ever complaining about an employer’s FLSA violation would have no remedy.  In this scenario, a legislative amendment to Title VII, or legislation at the state level, might be the only potential source of protection.

In fact, many states have attempted to fill the gaps in protection for nursing mothers by passing their own legislation. A complete list of state laws enacted to protect breastfeeding can be found hereOf the states where Stoel Rives has offices, California, Oregon, and Minnesota each have laws that require employers to provide breaks for women to breastfeed or pump. To the extent these state laws are more robust than the FLSA amendment, they are not preempted.  see 29 U.S.C. § 207(r)(4).

Ninth Circuit Places Burden of Proof on Employers to Justify Refusal to Reinstate in FMLA Interference Claims

A Ninth Circuit panel ruled yesterday in Sanders v. City of Newport that when an employer opts to not restore an employee who was on FMLA leave to her former position, that the burden falls on the employer to demonstrate that such action was justified.

In Sanders, the plaintiff, a billing clerk, started feeling ill after an office move to a new location and the use of new low-grade billing paper. She was diagnosed with multiple chemical sensitivity, and took FMLA leave. Upon being cleared to work by her doctor, the City terminated her employment on the grounds that it could not guarantee a safe workplace for her given her sensitivity to chemicals. In instructing the trial court on plaintiff’s FMLA interference claims, the trial court placed the burden on plaintiff to prove that the employer lacked reasonable cause to reinstate her. On that instruction, the jury rendered a decision for the City on all claims.

The plaintiff appealed on the grounds that the instruction improperly placed the burden of proof on her, and the Ninth Circuit panel, consistent with rulings in the Eighth, Tenth and Eleventh Circuits, agreed. The Court based its decision on the plain text of regulations stating that “[a]n employer must be able to show, when an employee requests restoration, that the employee would not otherwise have been employed if leave had not been taken in order to deny restoration to employment.” The court held that the error was not harmless, and remanded the case for a new trial.

While this case was remanded based on a technicality in the jury instructions, and may yet culminate in an employer verdict, it provides a good reminder for employers that if they decide to deny restoration of employment to an employee following protected FMLA leave, it will be their burden to demonstrate that they had objective justification for the decision. Even if the decision was made in good faith, lack of objective justification may serve to limit damages, but not liability. 

President Obama Signs Expansion of FMLA Leave for Military Families

Earlier this week, President Obama signed the Fiscal Year 2010 National Defense Authorization Act (NDAA), a federal law that is enacted each fiscal year to specify the budget and expenditures of the United States Department of Defense.  This year, the NDAA contains two expansions of the exigency and caregiver leave provisions for military families under the Family and Medical Leave Act (FMLA):

  1. Caregiver Leave:  Employees could previously take up to 26 weeks of unpaid leave to care for a family member (spouse, child, parent or next of kin) who is an active service member currently undergoing treatment for a serious injury sustained on active duty; that leave has been expanded to allow leave to care for a veteran family member undergoing medical treatment, recuperation or therapy for a serious injury or illness that was sustained any time during the five years preceding the treatment.
  2. Exigency Leave:  Employees could previously take up to 12 weeks of unpaid leave for qualifying exigencies relating to a reservist family member's call to active service; that leave has now been expanded to provide exigency leave benefits to the family of a member of any armed service on active duty. 

These expansions became immediately effective when the law was signed. 

For more information on the military leave provisions of FMLA, check out this Fact Sheet on FMLA Military Family Leave Entitlements from the Department of Labor Wage and Hour Division.  While the fact sheet doesn't reflect these recent expansions, it does provide valuable information, including who is a qualifying family member and what is a qualifying exigency. 

Oregon BOLI: No Changes to OFLA Regulations (yet...)

As previously reported here at the Stoel Rives World of Employment, new federal Family and Medical Leave Act (FMLA) regulations went into effect on January 16, 2009.  Oregon has its own analog to FMLA, the Oregon Family Leave Act (OFLA), with its own regulations.  FMLA applies to employers with 50 or more employees, while OFLA applies to employers with with 25 or more employees; Oregon employers with 50 or more employees are required to follow both laws.

Historically, OFLA and its regulations have tracked federal law (with a few notable exceptions that are more generous to employees).  However, following implementation of the new FMLA regulations, there is now a disconnect between the two laws.   The Oregon Bureau of Labor and Industries (BOLI) announced recently that even though there are new discrepencies between the two laws, it will not immediately update the OFLA regulations to match the new FMLA rules. (Click here to read BOLI's press release on its decision.)  Instead, BOLI will conduct informational hearings in February 2009 to determine whether updates to the OFLA regulations are warranted.  In the meantime, BOLI issued this brief on implementing OFLA under the new FMLA rules, which provides an overview of the new differences between OFLA and FMLA and how employers can safely navigate the two laws. 

Where does that leave Oregon employers that are covered by both OFLA and FMLA?  The rule of thumb is to apply both sets of laws, and then follow the one most generous to employees.  The Stoel Rives World of Employment will follow the hearings on the OFLA regulations and provide updates to let you know when and if there are any changes. 

Reminder: New FMLA and Military Leave Regulations Take Effect Today

In case you haven’t heard, new Family and Medical Leave Act (FMLA) regulations take effect today, Friday, January 16. Some highlights of the new regulations include:

  • Regulations covering the recently instituted military family leave laws
  • Expanded FMLA general notification requirements
  • New individual eligibility notification and leave designation requirements
  • New forms for eligibility notification, leave designation, and health care provider and military family leave certifications
  • New fitness-for-duty certification requirements
  • New leave tracking and notification requirements
  • New certification and recertification requirements and procedures

There are too many changes to explain in detail in this email message, but we have you covered: Follow this link to download our detailed memorandum on the new regulations. Follow this link to download the new FMLA forms and poster.  Or if you're really into reading lengthy goverment regulations (and who isn't, really?) you can download the new FMLA regulations here

New FMLA Forms and Poster Now Available For Download

As previously reported in the Stoel Rives World of Employment, new Family and Medical Leave Act (FMLA) regulations will take effect January 16, 2009.  The DOL has now published six new optional forms contemplated by the new regulations, and as promised, the Stoel Rives World of Employment has them for you right here (just click on the form number to download):

  1. Employee’s Serious Health Condition (WH-380E)
  2. Family Member’s Serious Health Condition (WH-380F)
  3. Notice of Eligibility and Rights and Responsibilities form (WH-381)
  4. Designation Notice to Employee of FMLA Leave (WH-382)
  5. Certification of Qualifying Exigency for Military Family Leave (WH-384)
  6. Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave (WH-385)

And as if that's not enough, there's a new mandatory FMLA poster to put up in your workplace, which you can download here:  2009 FMLA Poster.  As you know, every employer covered by the FMLA is required to post and keep posted on its premises, in conspicuous places where employees are employed, a notice explaining the Act’s provisions - this new poster will meet those requirements. 

Employee Free Choice Act Tops List of Anticipated L&E Legislation

In case you missed it, Barack Obama will be the next President of the United States!  And both houses of Congress will be controlled by Democratic majorities.  Wondering what this will mean for labor and employment law?  So are we!  But we've gone a step further and made some educated guesses on what to watch out for.

  • The Employee Free Choice Act (EFCA).  The EFCA would be the most wide-ranging revision to federal labor law in 50 years. It would, among other things, require employers to recognize a union as the exclusive bargaining agent for its employees based solely on a "card check" process rather than a secret ballot election.  If passed, it is expected to drastically increase union organizing and unionization rates.  The Stoel Rives World of Employment will be watching this one very closely.  
  • The Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers Act  (RESPECT).  No, it's not an Aretha Franklin song.  The "RESPECT" Act would reverse the NLRB’s recent rulings that clarified the requirements to be a "supervisor" under federal labor law. RESPECT would dramatically increase the number of employees who could unionize. Sock it to me!
  • The Paycheck Fairness Act and the Equal Remedies Act.  These statutes—competing versions to address the same issue—would reverse the U.S. Supreme Court’s recent Ledbetter ruling addressing the statutes of limitations under Title VII. Both would enable plaintiffs to press viable claims going back much further in time.
  • The Civil Rights Act of 2008.  The proposed amendments to the civil rights laws would make numerous changes including removal of damage caps on sex, religion, and disability discrimination, as well as retaliation lawsuits.
  • The Employment Non-Discrimination Act (ENDA).  ENDA would amend Title VII to add sexual orientation as a protected class. 
  • The FOREWARN Act. This amendment to WARN would increase the notice period for plant closings or mass layoffs from 60 to 90 days.
  • Minimum wage.  President-elect Obama has also expressed his support for raising the minimum wage to $9.50 per hour by 2010.
  • Family and Medical Leave Act (FMLA).  President-elect Obama has also indicated his support for expanding the Family and Medical Leave Act to cover companies with 25 or more employees (currently 50).

The World of Work will be watching this legislation closely and will bring you updates as they occur.  For more information now, check out this update on pending legislation from Stoel Rives.
 

DOL Issues Final FMLA Regulations

Today the Department of Labor published its Final Regulations Implementing the Family and Medical Leave Act (FMLA). They go into effect on January 16, 2009 (60 days after publication).  Click here to download the final FMLA regulations.   (Warning!  The document is 762 pages long!  However, much of that is a handy explanation of the changes and the comments the DOL received.)

The final regulations address many aspects of FMLA, the federal law that provides eligible employees the right to take unpaid leave for certain absences, such as:  the birth or adoption of a child; to care for a child, spouse, or parent with a serious health condition; or because of the employee’s own serious health condition. The final regulations also address new military family leave entitlements enacted as part of the National Defense Authorization Act, which provides leave rights to employees who provide care for covered servicemembers with a serious injury or illness.

Highlights of the final regulations include:

  • Incorporation of new military family leave requirements into the regulations, with specific guidance on administering military leave
  • Clarification on administering intermittent leave, including an explanation of when an employee may be transferred during intermittent or reduced schedule leave
  • Clarification on employee eligibility following breaks in employment such as extended leaves
  • Clarification on what constitutes a "serious health condition," including revised definitions of "incapacity" and "continuing treatment"
  • Clearer guidelines for administering pregnancy and childbirth leaves
  • Consolidated guidelines on adoption leave
  • Clarification of how to count holidays in cases where an employee takes leave in increments of less than a full workweek.
  • Clarification on administering leave to care for a parent
  • A new requirement that when an employee gives less than 30 days' notice of a foreseeable leave, the employee must explain the reason for failing to give 30 days' notice
  • An explanation of how much information an employer can obtain in the medical certification to substantiate the existence of a serious health condition and the employee’s need for leave due to the condition

There are many more minor changes, too many to list in a single blog post.  To get the full picture, download the final regulations