Category Archives: Employee Health, Wellness, and Safety

Going Wild About Service Animals at Work

Animals as a public accommodation.

A growing public trend is the presence of service animals in places like stores, restaurants, schools, airports and job sites. The basis for this trend is not a new one. It comes from Title III of the Americans with Disabilities Act (ADA) which guarantees people with disabilities the “full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation.”  This guarantee from the ADA allows for the use of service animals to help people with disabilities accomplish these public accommodations.

The difference between Service Animals, Emotional Support Animals, and Therapy Animals.

Some employers react negatively to the idea of allowing service animals in the workplace. This might be due to a misunderstanding of the difference between service animals, emotional support animals, and therapy animals. These are entirely different categories of animals.

Service animals are not considered to be pets. These are trained animals that must qualify in two categories to be protected as service animals under the ADA: Continue reading Going Wild About Service Animals at Work

NEW LAW: Coming Soon to Westchester County – Sick Leave

Attention employers in Westchester County, New York – Under the Westchester County Earned Sick Leave Law, starting April 10, 2019 you will be required to provide sick leave benefits to employees who work more than 80 hours in a year.

How much sick leave must be provided?

 Starting April 10, 2019, eligible employees of Westchester County employers will start accruing sick leave. Employers with less than 5 employees may provide unpaid sick leave, while employers with 5 or more employees must provide paid sick leave benefits.

Unused sick leave can be carried over from year-to-year, but employers are not required to allow an employee to use more than 40 hours of sick leave in one year. Continue reading NEW LAW: Coming Soon to Westchester County – Sick Leave

California Employers — Are You Providing School Activities Leave?

Did you know that in California, companies may be required to grant leave to employees to attend their children’s school activities.

School is back in full swing after the holidays, which also means parent teacher conferences, school assemblies, and other school-related activities are being scheduled.

With employees requesting time off to attend events at their child’s school, California employers may not be aware of two lesser known statutes (California Labor Code sections 230.7 and 230.8) that give parents (and other parental figures) of school-aged children protected time off to attend their child’s related school activities.

Who is a covered employer and employee?

Labor Code section 230.7 applies to all California employers regardless of size.  While Labor Code section 230.8 only applies to employers employing 25 or more employees at a single location.

What is a “parent”?

A “parent” is defined as a natural parent, guardian, stepparent, foster parent, or grandparent of a child of the age to attend kindergarten or grades 1 through 12 or a licensed child care provider.   It is important to note that this does not apply to adult children.

What types of leave may an employee be entitled to?

Under Labor Code section 230.7, employers are required to provide parents of school-aged children with time off to appear at their child’s school for disciplinary purposes.

Under  Labor Code section 230.8 , parents of covered employers may take up to 40 hours per year of job-protected time off to find, enroll, or reenroll their children in school or with a licensed child care provider, or to participate in activities of the school or child care provider. In order to take the protected time off, reasonable notice must be given to the employer before the scheduled absence.

In addition, any time taken for the reasons described above must not exceed eight (8) hours in any calendar month of the year. The code does not define child related school and care activities; however broad enough to suggest field trips, parent- teacher conferences and school assemblies are included.

Parents may also be entitled to 40 hours of job-protected leave for unscheduled absences for “emergency” situations.  Emergency situations are defined as a situation where a child cannot stay in the care of the school or child care provider for the following circumstances:

  • the school or child care provider has unexpectedly requested that the child be picked up,
  • behavioral or discipline problems,
  • unexpected closure or unavailability of the school or child care provider,
  • natural disasters such as fire, earthquake, or flood.

Taking leave for this purpose does not negate the parent’s obligation to inform employers of their unscheduled absence as soon as practicable.

 Can employers require Documentation?

An employer may request the employee provide documentation from the school or child care provider to prove the employee took time off for the reasons described above on a particular date and time.

How does other employment policies apply?

Employees may use any accrued/unused vacation or PTO for scheduled time off related to enrollment or school and child care organized activities. Employers are not required to offer paid time off independently to accommodate absences under section 230.8.

 

NEW LAW: Prohibits Discrimination Based on Gender Identity or Expression in New York

On January 25, 2019, New York Governor Andrew Cuomo signed The Gender Expression Non-Discrimination Act (GENDA) into law. This new law amends the New York State Human Rights Law (NYSHRL) by adding gender identity and gender expression to the list of protected classes. With this addition, discrimination in the workplace based on an individual’s gender identity or gender expression is now prohibited.

“The term “gender identity or expression” means a person’s actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender”.

What does this mean for employers?

  • Employers will have to develop and implement new anti-discrimination policies and anti-harassment policies.
  • Make sure anti-discrimination/anti-harassment training programs address gender identity or expression discrimination.
  • Training managers on detecting such discrimination will be needed.
  • Education/train employees on the forms of harassment and discrimination.
  • Provide reasonable accommodation if needed.

Cautious Optimism for Holding Disabled Employees Accountable for Attendance Issues

Many employers and HR professionals view disabled employees as being immune to disciplinary actions when they have attendance violations. This view is often based on past experience and the many negative “war stories,” that are often shared when employers are sued for disability discrimination – even after they believe that the were doing everything correctly.  The stress of these stories and experiences often causes business leaders to become overly cautious and implement practices where disabled employees are never terminated and never disciplined. While that might suit some situations, recent appellate court decisions have shown that such over-corrections might not be necessary in every case.

There are three recent decisions that come from the Court Appeals that point to the same conclusion – employers can consider attendance as essential to the function of just about and job and in some cases can terminate disabled employees for attendance related issues. The caveat of doing such terminations is that the attendance issues must not be for reasons that are protected leave under laws such as the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and any state laws of this nature, including local sick leave laws. When unapproved absences are not related to a protected leave, these decisions show that courts have leaned in favor of employers being able to terminate disabled employees. Continue reading Cautious Optimism for Holding Disabled Employees Accountable for Attendance Issues

Employers Beware — You Cannot Always Require Employees Exhaust Paid Leave Benefits During FMLA Leave

When administering FMLA , employers are generally advised to run FMLA concurrently with other leaves for which the employee may be eligible– as this practice prevents leave stacking.

However, when drafting FMLA policies, how an employer handles the use of paid leave during FMLA is commonly overlooked.  While most leave policies require employees to use their earned vacation, sick or PTO time concurrently with FMLA leave, employers tend to overlook the FMLA regulation that prohibits employers from requiring employees to use paid leave during FMLA.

Employers should consider how to handle situations where an employee who is requesting FMLA also has some type of paid leave available for his or her use. Continue reading Employers Beware — You Cannot Always Require Employees Exhaust Paid Leave Benefits During FMLA Leave

NEW GUIDANCE: FAQs Regarding Michigan’s Paid Medical Leave Act Published

Paid sick leave is coming to Michigan (at least for employers who employ more than 50 employees) — thanks to the Michigan Paid Medical Leave Act. (For an overview of the Paid Medical Leave Act, please see “NEW LAW: Michigan Amends Earned Sick Time Act“)

In anticipation of this new law, LARA (Michigan’s Department of Licensing and Regulatory Affairs) recently published FAQs relating to the Paid Medical Leave Act and also released the new required poster, which covered employers must post in the workplace.

One of the most important questions answered in the FAQs is addressing when the new  Paid Medical Leave Act takes effect.  According to LARA, the new law will take effect on March 29, 2019. Continue reading NEW GUIDANCE: FAQs Regarding Michigan’s Paid Medical Leave Act Published

NEW GUIDANCE: Massachusetts Department of Family and Medical Leave Publishes FAQs on Massachusetts Paid Family and Medical Leave Law

As we previously reported (in “NEW LAW – Paid Family and Medical Leave Coming to Massachusetts“), starting in 2021,  employees will be able to begin collecting paid family and medical leave benefits.

While the Massachusetts Department of Family and Medical Leave  is not required to publish its proposed regulations relating to the  Massachusetts Paid Family and Medical Leave Law until March 31, 2019, it has published FAQs for both employers and employees relating to the new program.

These FAQs clarify some of the questions that people have had about this new program — most importantly —

  • What are the employer’s contribution limits?
    • The employer’s contribution will be limited to 0.63% on the first $128,400 of an individual’s annual earnings ( this figure may be adjusted annually)

and

  • When in 2021 employees are able to start collecting these benefits
    • On January 1, 2021, employees can begin claiming benefits for bonding with a child or newborn; service-member related events; and dealing with the employee’s own serious health condition; and
    • On July 1, 2021, employees can begin claiming benefits to care for a family member with a serious health condition.

The FAQs can be found here for employers and here for employees.

NEW CASE: Without More, Full-Time Attendance Is Not An Essential Job Function

In a recent case (Hostettler v. College of Wooster), the US Sixth Circuit Court of Appeals held that a requirement that an employee work full time, without a duties-based reason for the requirement.

In this case, the plaintiff was an HR Generalist at College of Wooster. The plaintiff had recently had a baby and, when she was released to return to work, her doctor provided a restriction that the plaintiff could only work part-time because the plaintiff was suffering from postpartum depression and separation anxiety.

Initially, the employer granted the requested accommodation – allowing the employee to work 5 half days per week.  The plaintiff worked that modified schedule for one month and then turned in a note from her doctor stating that she would need to continue working the modified schedule for an additional two months.  The next day, the employee was terminated.  The reason given – the department could not function properly because the plaintiff was not working full-time and working a full-time schedule was an essential function of the HR Generalist position.  The plaintiff filed a lawsuit claiming that her termination was discriminatory. Continue reading NEW CASE: Without More, Full-Time Attendance Is Not An Essential Job Function

NEW LAW: Michigan Amends Earned Sick Time Act

Earlier this year, we reported that Michigan had passed a new paid sick leave law (see NEW LAW: Michigan’s New Earned Sick Time Law).  In this article, we cautioned employers that since the law that was initially passed was scheduled to be a ballot initiative (the Michigan Paid Sick Leave Initiative) in the November 2018 election, the Michigan legislature would likely amend the law (and in amending the law, would make substantial changes to the requirements).

Well, the Michigan legislature did not disappoint.  On December 14, 2018, Michigan Governor Rick Snyder signed Senate Bill 1175 (the Paid Medical Leave Act) into law.  This new law amends and greatly overhauls the Michigan paid sick and safe time law as follows: Continue reading NEW LAW: Michigan Amends Earned Sick Time Act