We blogged in February about two Seventh Circuit cases pending before the Supreme Court that would have given the Court the opportunity to provide guidance as to whether, and if so to what extent, the ADA requires employers to provide disabled employees who have exhausted their FMLA and other employer-provided leave with additional leave as a reasonable accommodation. The Supreme Court recently denied review in both of those cases, so the issue will continue to percolate in the lower courts. What does this mean for employers? Given the unsettled state of the law, and as further explained in our prior blog, employers should continue to evaluate disabled employees’ requests for additional leave on a case-by-case basis. The length of the leave request, whether the employee’s doctor can provide a reasonably certain return date, and the impact of the request on coworkers and operations are all relevant considerations.
We previously blogged about the requirements of Maryland’s new paid sick leave law, the Maryland Healthy Working Families Act. That law took effect on February 11, 2018, despite efforts by a number of lawmakers to delay it. As required by the law and in response to thousands of questions received, the Maryland Department of Labor recently issued a frequently asked questions document, three sample policies, and an employee notice poster available in English and Spanish. The guidance provides information on topics such as how to count your employees to determine whether you meet the 15-employee threshold for mandatory paid leave (employers with fewer than 15 employees are required to provide only unpaid leave); how the law applies when you have part-time employees, or a collective bargaining agreement; and whether you can use a different method of leave accrual for different types of employees (the answer is yes).
The Department’s guidance should prove useful to employers in complying with Maryland’s new law. If you already have a sick leave policy in place, it should be carefully reviewed to ensure it meets all of the statutory requirements, and if it does not, you should amend it or add a new policy, accordingly. In addition, if you have other leave policies such as vacation leave, PTO, parental leave, or FMLA leave, your sick leave policy will need to be coordinated with your existing policies. Employers should also bear in mind that the Department issued its guidance with the caveat that it is only preliminary; so continue to stay tuned for further developments, including potential regulations that may be promulgated by the Department.
Suppose that an employee with cancer has exhausted 12 weeks of unpaid leave under the Family and Medical Leave Act (FMLA) but needs more time to recover from treatment before returning to work. Whether such an employee is entitled to additional unpaid leave as a reasonable accommodation under the Americans with Disabilities Act (ADA) is one of the thorny leave questions that employers confront—and one the Supreme Court may soon address, thanks to pending petitions for certiorari in two recent cases out of the Seventh Circuit.
The first case, Severson v. Heartland Woodcraft, Inc., 872 F.3d 476 (7th Cir. 2017), concerns a disabled employee who needed two or three months of leave beyond his FMLA leave to recover from back surgery. The Seventh Circuit held that the employer did not have to provide it. The whole point of ADA accommodations, the Court reasoned, is to allow disabled employees to perform the essential functions of their jobs, not to excuse them from working. Thus, the Court adopted a per se rule that “[a] multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA.” Id. at 479. In the second case, Golden v. Indianapolis Housing Agency, 698 F. App’x 835 (7th Cir. 2017), the Seventh Circuit applied this rule to deny a disabled employee’s claim for additional leave to recover from cancer surgery after FMLA and four weeks of additional employer-approved leave had expired. The employee sought more leave pursuant to her employer’s policy permitting employees to request up to 6 months of unpaid leave when no other form of leave was available. At the time of her request, her doctor had not provided an expected return-to-work date. The Seventh Circuit held the employee’s additional leave request removed her from being a “qualified individual with a disability” under both the ADA and the Rehabilitation Act, which incorporates ADA standards.
The Seventh Circuit’s per se rule is at odds with the EEOC’s 2016 guidance on ADA leave, which requires employers to evaluate such requests on a case-by-case basis. In the EEOC’s view, even a multimonth leave can be a reasonable accommodation in some circumstances if the end date is reasonably certain. The EEOC continues to apply this approach today. In January 2018 alone the agency sued one North Carolina employer for denying a diabetic employee’s request for several weeks of additional leave following the period that had been approved initially to recover from surgery, and it announced settlements with employers in Michigan and Mississippi who denied requests for leave extensions.
Like the EEOC, other federal courts apply a fact-intensive approach to ADA leave questions. See, e.g., García-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638 (1st Cir. 2000). However, the Tenth Circuit, in an opinion by then Judge (now Justice) Gorsuch, seems to have drawn a bright line against requests for leave of more than 6 months. Hwang v. Kansas State Univ., 753 F.3d 1159, 1161 (10th Cir. 2014) (“It perhaps goes without saying that an employee who isn’t capable of working for so long isn’t an employee capable of performing a job’s essential functions—and that requiring an employer to keep a job open for so long doesn’t qualify as a reasonable accommodation.”) Some courts have also ruled that employees determined to be disabled “indefinitely” after a period of initial leave are not qualified individuals entitled to accommodation under the ADA. See, e.g., Minter v. District of Columbia, 809 F.3d 66 (D.C. Cir. 2015).
The Supreme Court could grant review in Severson or Golden, or both, in the upcoming months to provide some needed clarity on this issue. Given the unsettled state of the law, it is prudent for employers to continue engaging disabled employees who cannot return to work at the end of an FMLA or other initial company-approved leave in an interactive process to determine whether additional leave (or some other accommodation) is reasonable. The amount of leave the employee has already taken, the length of additional leave requested, whether the employee’s doctor is able to provide a reasonably specific return date, and the impact on the employee’s co-workers and the employer’s operations are among the relevant considerations.
Absent further action by the Maryland General Assembly, a new sick leave law known as the Maryland Healthy Working Families Act (the “Law”) will take effect in Maryland by February 11, 2018. Although the Law was vetoed by Governor Larry Hogan, the General Assembly overrode his veto on January 12, 2018. The new Law adds to mandatory sick leave laws enacted by a number of other states and localities and to the federal sick leave rule for federal contractors. The Law is summarized below.
Which employers are covered? All Maryland employers are covered. Employers with 15 or more employees must provide paid sick leave under the Law. Employers with 14 or fewer employees must provide unpaid sick leave under the Law. References to sick leave below mean paid leave for employers above the 15-employee threshold and unpaid leave for those below the threshold.
Which employees are covered? The Law does not apply to (1) employees who “regularly” work fewer than 12 hours per week; (2) independent contractors; (3) certain real estate brokers and real estate salespersons; (4) individuals under age 18 before the beginning of the year; (5) workers in certain agricultural sectors; (6) construction workers covered in a collective bargaining agreement; (7) specified employees who work on an as-needed basis in a health or human services industry; (8) an employee who “is employed by a temporary services agency to provide temporary staffing services to another person if the temporary services agency does not have day-to-day control over the work assignments or supervision of the individual while the individual is providing the temporary staffing services”; or (9) an employee who “is directly employed by an employment agency to provide part-time or temporary services to another person.”
How much sick leave must be provided? Employees earn one hour of sick leave for every 30 hours worked. Earned sick leave begins to accrue on January 1, 2018 or the date on which the employee begins employment with the employer, whichever is later. Although an employer typically must allow an employee to accrue sick leave for all hours worked, an employer need not accrue sick leave for employees during (1) a two-week pay period in which the employee worked fewer than 24 hours total; (2) a one-week pay period if the employee worked fewer than a total of 24 hours in the current and immediately preceding pay period; or (3) a pay period in which the employee is paid twice a month and the employee worked fewer than 26 hours in the pay period.
For what purposes may sick leave be used? Employees must be permitted to use sick leave:
- To care for or treat the employee’s mental or physical illness, injury, or condition;
- To obtain preventive medical care for the employee or employee’s family member;
- To care for a family member with a mental or physical illness, injury, or condition;
- For maternity or paternity leave; and
- For specified circumstances due to domestic violence, sexual assault, or stalking committed against the employee or the employee’s family member.
An employer can require that an employee provide verification of the need for leave if an employee uses the leave for more than two consecutive shifts.
How much notice must an employee provide? If the need for leave is foreseeable, the employer may require an employee to provide reasonable advance notice of not more than 7 days before the leave would begin; if not foreseeable, the employee must provide notice as soon as practicable.
May employers cap sick leave use or accrual? Employers may restrict employee sick leave use and accrual as follows:
- Employers may restrict employees from accruing more than 64 hours of sick leave at any time
- Employers may restrict employees from using more than 64 hours of sick leave in a year
- Employers may restrict employees from carrying over more than 40 hours of accrued, unused sick leave from one year into another
- Employers may prohibit employees from using sick leave during the first 106 calendar days worked.
What happens to sick leave at the end of employment? Employees need not be compensated for sick leave at the conclusion of employment, but employees who are re-hired within 37 weeks after leaving employment must have their unused accrued leave reinstated.
What if an employer already has a paid time off or paid sick leave policy? Employers can use an existing paid leave policy (including a paid time off policy) to satisfy the Maryland requirements so long as the terms are equal or more generous than the Law requires.
What notices must an employer provide to its employees? Employers must provide a specified notice to employees, informing them of their right to leave under the Law. The Maryland Commissioner of Labor & Industry (the “Commissioner”) is required to create and make available a free poster and model notice. Employers must also provide employees with regular notice about the amount of sick leave they have available, which must be provided either in writing each time an employee is paid (such as on a pay stub), or through an online system.
Will any regulations or guidance by published by Maryland? The Commissioner must publish a model policy that an employer may use to satisfy the Law’s requirements. The Commissioner must also provide technical assistance to an employer upon request. Finally, the Law authorizes the Commissioner to promulgate regulations that will provide further details on the terms of the Law.
What are the consequences for failure to comply? Penalties include: (1) payment for the value of leave not paid or provided in violation of the Law; (2) an additional amount of up to three times the unpaid leave; (3) actual economic damages; (4) a civil penalty of up to $1,000 for each employee for whom the employer is not in compliance; and (5) in certain circumstance, punitive damages. Civil penalties may be waived if a violation is caused by an error of a third-party payroll service provider.
How does the Law impact sick leave laws passed by Maryland localities? The Law preempts local jurisdictions from enacting new paid sick leave laws after January 1, 2017; however, it does not preempt localities from amending paid sick leave laws that were enacted before January 1, 2017. Therefore, Montgomery County, Maryland’s paid sick leave law (which provides more generous benefits than the Law in some respects) will remain effective, however, Prince George’s County’s law will not.
What’s next and what should employers do? Employers should act now to get into compliance with the Law, including establishing or updating paid sick leave or paid time off policies to provide the amounts and types of leave required by the Law. At the same time, employers should keep a close eye on the Maryland legislative process. There is a possibility that the Maryland General Assembly may delay the effective date of the bill until April rather than February, and that additional amendments may be passed. Employers should also watch for new regulations and guidance to be promulgated by the Commissioner.
We’ve previously written about the NYPFL here, but this post focuses on how employers should prepare now that the NYPFL has taken effect, and how employers should prepare when an employee decides to take paid leave.
What Employers Should Do Now:
Right away, if employers have not already done so, employers should contact their disability insurance carrier about obtaining Paid Family Leave (“PFL”) coverage. Generally. PFL coverage will be added to the disability insurance policy that employers already carry, but if the employer is self-insured for disability, then the employer may purchase a separate policy or apply to self-insure. Employers may deduct the premium for the PFL insurance policy from employees through a payroll deduction, or they may choose to cover the cost themselves. If an employer wishes to offer more generous paid leave benefits in lieu of those required by law, they must submit their plan to the NYS Workers’ Compensation Board for approval. Such employer should seek reimbursement from their insurance carriers, similar to the process employers follow if they have their own, more generous workers’ compensation benefits. To do so, employers should purchase the statutory PFL coverage as a rider on their disability policy and supplement the pay that they receive from their insurance carrier. Alternatively, employers could apply to self-insure and prove to the NYS Worker’s Compensation Board that their plan covers at least what the NYPFL requires. It is important to note that employers also need to do this for disability coverage—employers cannot apply only to self-insure for paid family leave. To self-insure, employers need to notify the Self-Insurance Office of the Workers’ Compensation Board and pay a security deposit.
Second, if employers obtain Paid Family Leave insurance (as opposed to self-insuring), the insurance carrier will provide a Notice of Compliance and this should be posted in a conspicuous setting by January 1st (just like what is required under Workers’ Comp and Disability Insurance coverage). Simultaneously, all employee handbooks and written materials should be updated to include the Paid Family Leave information. Although most employees will be covered by the law, those that are exempt due to the limited amount of time that they have worked with the employer should be provided with information letting them know that they may waive coverage by completing a waiver form.
What to do when an Employee Takes Paid Family Leave:
When employees decide to take PFL, they must alert their employer with 30 days’ notice, or, if it is not possible, they must alert the employer as soon as they know. Participating employees should alert their employers by submitting a completed claim package to the employer’s insurance carrier, who must process the claim and issue a determination within 18 days. Employers may provide the corresponding claim form, but employees may also obtain this form and other information that they need to provide to the insurer from the NYPFL website or from the insurance carrier directly. Simultaneously, the employer must tell the insurance provider what dates the employee intends to use Paid Family Leave.
Employees cannot combine PFL with workers’ compensation benefits, and, to the extent that an employee is eligible for both PFL and FMLA, they must be taken concurrently.
Additional Employee Protections:
The NYPFL has a similar retaliation policy to the FMLA. While an employer may hire temporary workers during the time an employee takes PFL, employers cannot penalize an employee for taking this time or restrict an employee’s ability to return to the same or similar position with comparable pay, benefits, and other terms and conditions of employment. Additionally, while taking PFL, an employer must maintain an eligible employee’s existing health insurance benefits as if the employee was still working.
Last month, New York City Mayor Bill de Blasio signed a bill into law amending and expanding the NYC Earned Sick Time Act (ESTA). The law previously allowed full-time and part-time NYC employees who work more than 80 hours in a year to accrue up to 40 hours of paid sick leave per year to be used for:
- an employee’s own mental or physical illness, injury or health condition
- an employee’s need for medical diagnosis, care, or treatment of a mental or physical illness, injury or health condition
- care of a family member who needs medical diagnosis, care, or treatment of an illness, injury, or health condition, or who needs preventative medical care
- an employee’s need to care for a child whose school or child care provider is closed due to a public health emergency.
Under the current version of the law, family members were defined as children (biological, adopted, or foster children, legal wards, children of an employee standing in loco parentis), grandchildren, spouses, domestic partners, parents, grandparents, children or parents of an employee’s spouse or domestic partner, or siblings (including half, adopted, or step siblings).
How the Amendment Expands the Old Law:
The amendment, which will go into effect on May 5, 2018, renames the law to the “NYC Earned Sick and Safe Time Act” and provides employees with additional situations in which they can use accrued paid leave. It expands the law to allow employees to use accrued paid leave where an employee or an employee’s family member has been the victim of a family offense matter, sexual offense, stalking, or human trafficking. For example, an employee may use accrued paid leave to:
- obtain services from a domestic violence shelter, rape crisis center, or other shelter or services program for relief from a family offense matter, sexual offense, stalking, or human trafficking;
- participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee’s family members from future family offense matters, sexual offenses, stalking, or human trafficking;
- file a complaint or domestic incident report with law enforcement;
- meet with a district attorney’s office; and/or
- enroll children in a new school.
Additionally, the amendment expands the definition of family member to include any other individual related by blood to the employee and any other individual whose close association with the employee is the equivalent of a family relationship.
What Employers Need to Know
Employers will be permitted to require employees to provide reasonable documentation of an employee’s request to use accrued paid time following an employee’s absence of more than three consecutive work days. This documentation can take many forms, such as a signed note from a victim’s organization, attorney, member of a clergy, or medical provider, a police or court record, or a notarized letter from an employee documenting the need for leave. Employees supporting documentation must remain confidential, and employers are not permitted to seek additional information (beyond the reasonable documentation described above) relating to the domestic violence, sexual offenses, stalking or human trafficking.
Employers must notify their workforce of the new law by May 5, 2018.
Employers generally assume, correctly, that an employee who fails to report for duty at the end of an FMLA leave with a specified end date can be terminated. But it is important not to send out that termination letter too quickly, because employees sometimes need more leave than originally anticipated. Federal regulations require employees to provide “reasonable notice (i.e., within two business days) of the changed circumstances where foreseeable.” 29 C.F.R. § 825.311. This “reasonable notice” rule seems designed to benefit the employer. However, a federal district court in Virginia recently interpreted it to permit an employee who learned from her doctor on the very last day of her FMLA leave that she needed additional leave to wait several days after her leave ended to tell her employer she needed a brief extension. Because the employer fired the employee the day after her leave expired, before the end of the “reasonable notice” period, the court found an FMLA violation and awarded the employee liquidated damages and front pay totaling nearly $750,000. Perry v. Isle of Wight County, No. 2:15-cv-204 (E.D. Va. Aug. 10, 2017), appeal docketed, No. 17-2054 (4th Cir. Sept. 11, 2017).
Employers can take measures to avoid being caught by surprise when an employee who has not exhausted her available FMLA leave time needs to extend her leave. For example, employers should consider requiring periodic updates of the employee’s status and anticipated return date during the leave, particularly as the return-to-work date approaches. In addition, employers should review their FMLA forms and policies to be sure that employees are clearly informed of their duty to provide reasonable notice of any changed circumstances. Employers should also consider defining “reasonable notice” to mean two business days, rather than the four business days afforded by the employer in Perry. Finally, when an employee, such as the Perry plaintiff, has a doctor’s appointment scheduled for the last day of leave, consider requesting same-day notice of any need for additional leave, while bearing in mind that the law may afford the employee a grace period in which to provide such notice.
Beginning January 1, 2018 nearly all private employers in New York must prepare for what some say is the most comprehensive paid family leave program in the nation. The New York Paid Family Leave Program (NYPFL) will provide New Yorkers job-protected, paid leave to bond with a new child, care for a loved one with a serious health condition, or help relieve family pressures when someone is called to active military service.
What the NYPFL Does
The new law has three primary roles. First, it provides that parents may take time off to bond with their child during the first twelve months following the birth, adoption, or fostering of a child (including children born, adopted, or fostered within twelve months of when the law takes effect). Second, it provides for paid time off if an employee’s family member (spouse, domestic partner, child, parent, parent-in-law, grandparent or grandchild) has a serious health condition. Under the new law, such conditions are defined as an illness, injury, impairment or physical or mental condition that involves either inpatient care or continuing treatment or supervision by a health care provider. Absent any complications, taking care of a family member with the common cold, flu, ear aches, upset stomach, minor ulcers, headaches other than migraines, routine dental or orthodontic problems do not meet the definition of a serious health condition.
Third, paid family leave is available when a spouse, child, domestic partner or parent of the employee is on active military duty abroad or has been notified of an impending call of active duty abroad. In this situation, the employee may request leave to help out with obligations arising out of the call to duty, such as making child care arrangements, attending certain ceremonies, or making financial or legal arrangements to address the military member’s absence. Of note, paid family leave may not be used for an employee’s own serious health condition or qualifying military event.
In each of the above scenarios, an eligible employee must receive 50% of their average weekly wage (AWW) up to and not to exceed 50% of the New York State Average Weekly Wage (SAWW) ($1305.92 per week, so 50% of this is a $652.96 benefit) for up to 8 weeks. The benefit amounts will be paid by the state through a fund that is financed through payroll deductions. The benefit schedule gradually increases year to year as follows:
2018: 8 weeks, 50% of employee’s AWW, up to 50% of SAWW
2019: 10 weeks, 55% of employee’s AWW, up to 55% of SAWW
2020: 10 weeks, 60% of employee’s AWW, up to 60% of SAWW
2021: 12 weeks, 67% of employee’s AWW, up to 67% of SAWW
In addition, an eligible employee must be provided with continuation of health insurance while on PFL and job protection.
Who the NYPFL Covers
Eligible employees are employees who at the time they apply for PFL have a regular work schedule of 20 or more hours per week who have been working for 26 weeks, and employees with a regular work schedule of less than 20 hours per week who have been working for at least 175 days. This includes non-US citizens and undocumented workers as well, though it does not expand to independent contractors or freelance workers. Additionally, while spouses may concurrently take PFL, if both spouses work for the same employer, the employer may deny PFL to one of the spouses.
Coverage of this law is extremely broad for employers. Any New York private employer who employs at least one individual for thirty consecutive days falls within the purview of the law, and must prepare accordingly.
More information to come.