The Ever-Changing Leave Landscape

Transcription

1 The Ever-Changing Leave Landscape August 30, 2018 Charisse Coleman, AGC American Bureau of Shipping Natalie Scott, Corporate Counsel Parker Drilling Ruthie White, Principal Jackson Lewis P.C Jackson Lewis P.C.

2 THE OLD FRONTIER 2

3 1st Leg: Americans with Disabilities Act (ADA) The ADA applies to qualified individuals with a disability. Qualified means that the employee can perform the essential job functions of the position he/she holds or desires, with or without a reasonable accommodation. The ADA defines disability as a physical or mental impairment that substantially limits one or more... major life activities. Given the revisions in the ADAAA, The focus should be on accommodation vs. determining if an employee has a disability. An employer must provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment unless providing an accommodation would cause the employer undue hardship. 3 Attorney-Client Privileged/ Attorney Work Product.

4 The ADA s 4-Step Interactive Process 1. Analyze the particular job involved and determine its purpose and essential functions. 2. Consult with the applicant or employee individually to ascertain the precise job-related limitations imposed by the disability and how those limitations could be overcome with a reasonable accommodation. 3. In consultation with the applicant or employee to be accommodated, identify potential accommodations and assess the effectiveness each would have. 4. Consider the preference of the applicant or employee to be accommodated (not dispositive) and pick the accommodation that is most appropriate for both the applicant/employee and the Company. 4 Attorney-Client Privileged/ Attorney Work Product.

5 2 nd Leg: Family and Medical Leave (FMLA) Provides up to 12 weeks of leave to: to bond with a newborn child or placement of child in employee s home for foster care or adoption to care for a seriously-ill family member (spouse, child or parent) to recover from a worker s own serious illness to address qualifying exigencies arising out of a family member s deployment (military exigency) Provides up to 26 weeks of leave to care of an injured servicemember 5 Attorney-Client Privileged/ Attorney Work Product.

6 Federal FMLA & ADA Lawsuits Are Rising Source: Administrative Office of the US Courts, Table C-2 ( ) FMLA ADA-Employment 6

7 Number of Federal FMLA and ADA Lawsuits Filed ( ) Source: Administrative Office of the US Courts, Table C-2 ( ) Federal Lawsuits Filed FMLA ,198 1,277 ADA-Employment ,169 2,326 7

8 ADA: Is Leave An Accommodation? Yes: 1st, 2nd, 3rd, 4th, 5th, 6th, 8th, 9th, D.C. Circuits Maybe not: 7th, 10th, 11th Circuits On Jan. 18, 2018 petition for cert filed in the Severson case Is there a per se rule that a finite leave of absence of more than one month cannot be a reasonable accommodation under the ADA, or does the question of whether such a leave is a reasonable accommodation turn on the facts of the case? 8

9 Workers Compensation Leave Statutory method of providing wage-replacement (or death) benefits and medical expense coverage for employee with work-related injuries Covered injuries arising out of employment Leave or Accommodation with light or alternate duty? 9

10 THE NEW FRONTIER 10

11 Multi-State Challenges State PSL Local PSL Paid Family Leave Pregnancy Accommodation & Leave 11

12 The Current Landscape: Paid Sick Leave States with local paid sick leave or state paid sick leave law. *Not pictured, Puerto Rico 12

13 The Continued Creep Of Paid Sick Laws: PSL Jurisdictions Leave Arizona California AND San Francisco, Oakland, Emeryville, Los Angeles, San Diego, Santa Monica and Berkeley, and Long Beach (limited applicability). New Jersey cities: Jersey, Newark, Passaic, East Orange, Paterson, Trenton, Elizabeth, New Brunswick, Plainfield and Morristown. Townships of Irvington, Montclair, and Bloomfield. New York City, New York Connecticut Oregon Washington D.C. Philadelphia, Pennsylvania Illinois locations: Chicago and Cook County (less opt outs). Maryland AND Montgomery County Massachusetts Minnesota cities: Minneapolis and St. Paul. Rhode Island Austin, Texas Vermont Washington AND Seattle, Tacoma Executive Order certain federal contractors 13

14 The Current Landscape: Paid Family Leave 14

15 Pregnancy Accommodation Laws Requiring More Than PDA Massachusetts Effective April 1, 2018 Vermont Effective January 1,

16 And there is more. Parental Leave Domestic Violence Leave Bone Marrow/Organ Donation Leave 16

17 Dads Testing the Limits On Parental Leave Policies In June of 2017, a father filed a systemic action charge with the EEOC against his national employer claiming his employer s parental leave policy of automatically providing 16 weeks of paid time off work to mothers and only 2 weeks of paid time off work to fathers is discrimination based on sex. Charge is pending in Cleveland and alleges violations of both Title VII and the Ohio Civil Rights Act. 17

18 THE INTEGRATION CHALLENGE 18

19 Critical Questions Is the employee entitled to be absent with job protection? FMLA, other State laws Has the Company committed to providing additional job-protected leave? Evaluate policies and past practices Is additional leave required as a reasonable accommodation for employees with disabilities? Consider the requirements of the State Law and the ADA 19

20 Does Your Parental Leave Policy Pass The EEOC Pregnancy Test? Leave related to pregnancy, childbirth, or related medical conditions can be limited to women affected by those conditions. For purposes of determining Title VII's requirements, employers should carefully distinguish between: Leave related to any physical limitations imposed by pregnancy or childbirth, and Leave for purposes of bonding with a child and/or providing care for a child. Parental leave (time to bond with and care for the child) must be provided to similarly situated men and women on the same terms. 20

21 Overview Paid Sick Leave Covered ER Reasons for leave Eligible EE Notice Accrual Formula Certification When accrued time begins When accrued time can be used Minimum Increment of Leave Anti-retaliation provision Enforcement Safe harbor provided by ER s current PTO policies Exemptions 21

22 Considerations Front-loading Multi-jurisdictional Policies Highest Common Denominator PTO 22

23 Questions to Consider What leave management style is right for your Company? What is the current collaboration with vendors? What legal needs are the vendors not addressing? Are you involved in the implementation process? Do you coordinate with short-term disability and workers compensation? Have you reviewed your accommodation interactive process for possible weaknesses? Have you reviewed your undue hardship analysis process? 23

24 Questions to Consider Does the company need a leave audit? Does the company need to alter the leave process? Do the leave compliance elements need to be streamlined? Does the company need an FMLA or ADA compliance analysis? Do employees understand how to request a leave and their obligations when doing so? How does the company stay current on state and local leave laws? Who at your company has accountability for the leave and accommodation process? Have you identified the PSL, PFL that are applicable to your employees? 24

25 Thank You! With more than 850 attorneys practicing in major locations throughout the U.S. and Puerto Rico, Jackson Lewis provides the resources to address every aspect of the employer/employee relationship. jacksonlewis.com 25